Thursday, 15 December 2016

The Competence of the European Union in Copyright Lawmaking

The title of this posting was also the title of a seminar organised by the Institute of Advanced Legal Studies, University of London, on Thursday 15th December. The speaker was Dr Ana Ramalho who is Assistant Professor of Intellectual Property law at Maastricht Univeristy, and author of a book also bearing the same title. Dr Ramalho's book was reviewed by Nicola Searle on the IPKat website back in May.
As I often question both the Competence and the competence of the EU when it comes to copyright lawmaking, I hoped this seminar would provide some real answers. Unfortunately in her main presentation Dr Ramalho really only outlined the methodology she adopted in order to analyse the copyright aquis against the objectives which the EU had asserted in various preparatory papers that led to the 9 Directives which are largely concerned with copyright. To be fair to her, the original plan for the evening was also to have involved a contribution from Prof Lionel Bently who would, no doubt, have provided a contrasting look at the subject. Unfortunately he was unable to attend and so the remainder of the time was taken up with questions from the floor.
If one consults the EU's own website on the subject of competences, there is no mention of intellectual property per se, but from Dr Ramalho's presentation (and her book which is based on her PhD thesis) it quickly becomes clear that the bulk of the EU's competence in this area derives from its remit to establish and maintain a smooth running internal market. Versions of this phrase crop up in the recitals of virtually all of the 9 Directives which impinge on copyright, even where, as in the case of the Orphan Works Directive (pdf), it is hard to really see a direct impact of orphan works on the internal market in the context of the four freedoms. It is true that Article 118 of the Treaty on the Functioning of the EU (the Lisbon Treaty or TFEU) does confer a competence for the EU to " ... establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union ... " but Dr Ramalho thought this was a rather weak source of authority and certainly  [see first comment below] not one which imposed a mandatory duty on the EU.
Dr Ramalho's methodology and analysis of the subject of competence are complicated and detailed and so you will need to read her book to get the full flavour of what they entail (alternatively a shorter paper on the subject by the same author is available for download here). I'm not sure how much the analysis is of value in the real world (ie one inhabited by people other than politicians or academics) but, as was stated in the introduction to her presentation, her work is one of few academic works on this subject and is a valuable resource for that reason alone.
Without explicitly saying so, it would seem that one of Dr Ramalho's conclusions is that greater harmonisation of copyright law across the EU is desirable, although it is questionable whether at this stage there is the political will to delve into parochial matters (the tension between the common law Lockean view of copyright versus the droit d'auteur ethos for example) which still account for the many anomalies which can be found at the level of national copyright legislation. The low hanging fruit (copyright term, the relatively uncontentious Articles 2 to 4 of the Information Society Directive, for instance) having been taken, the Commission seems much more inclined to look at completely new areas such as the so-called value gap, rather than become too bogged down in fights over such things as harmonising the legislation over freedom of panorama, or moral rights, or as mentioned by Dr Ramalho, the contractual relationships between authors and the various intermediaries which make up much of the creative industries. This is rather like building a grand edifice before the foundations have been finished.
And regrettably Dr Ramalho could not be drawn into any detail about the role played by the CJEU in creating new law in this area, although she acknowledged that decisions such as Infopaq had had that effect. Maybe if Prof Bently had been present the discussion might have turned to Svensson and the court-made concept of a new public!


Ana Ramalho said...

Thank you for your views on this subject. I would just like to point out that I did not say that Article 118 TFEU is a weak source of authority. I did say that it does not establish an obligation to legislate. There is no space in a Q&A to go deeper in the subject, but I would like to take this opportunity to further explain my position:
Article 118 TFEU was drawn from the previous flexibility clause of the EC Treaty (i.e. Art. 308 EC Treaty). It was under Article 308 EC Treaty that other IP unitary rights (trademark, designs) were created. The flexibility clause continues to exist, though (Article 352 TFEU) – it is just doubtful that any future unitary IP right can be created under it, as now there is a specific norm to do so. This question is not merely theoretical, since the legislative procedure of Articles 118 and 352 is different. Article 118 TFEU follows the ordinary legislative procedure, whereas Article 352 requires unanimity in the Council.

So I would argue that the “shall” in Art. 118 refers to the obligation to use such article to create any unitary IP title, to the detriment of Art. 352. I.e., it does not impose an obligation to create IP titles; it imposes an obligation to use that Article if the legislature choses to create an IP title. This also seems to be in line with the fact that Arts. 114 & 115 use the word “shall” as well.

Moreover, I think this argument is consistent with the Vienna Convention on the Law of the Treaties. Article 33 paragraph 4 of the Vienna Convention establishes that, where a Treaty has been authenticated in 2 or more languages and there is a difference of meaning between them one should:
(a) Apply the interpretative tools of Articles 31 and 32 of the Convention; or, if that doesn’t work
(b) Adopt the meaning which best reconciles the texts having regard to the object and purpose of the treaty.

Article 32 of the Vienna Convention provides as a means of interpretation the preparatory work of the Treaty and the circumstances of its conclusion, which might give some strength to the argument above in so far as Article 118 was “detached” from ex-article 308. But also, “the meaning that best reconciles the texts” might come down to a majority argument. Other language versions of the treaties do not impose an obligation, so it is logical to say that the way to reconcile the texts is to go with the most adopted meaning.

Andy said...

Thanks Ana, I am happy to amend my comment.