IDP2016 (III). Raquel Xalabarder: Copyright law for a digital single market: how far are we from achieving it?

Notes from the 12th Internet, Law and Politics Congress: Building a European digital space, organized by the Open University of Catalonia, School of Law and Political Science, and held in Barcelona, Spain, on 7-8 July 2016. More notes on this event: idp2016.

Keynote speech. Chairs: Maria Julià

Prof. Raquel Xalabarder. Professor of Intellectual Property, Law and Political Science Department, Universitat Oberta de Catalunya (UOC).
Copyright law for a digital single market: how far are we from achieving it?

Copyright law grants an exclusive right on works contained in products (tangible goods) and services which must freely circulate within the EC/EU internal market.

So far, we have a bunch of national copyright laws, with different scopes, and with a marked principle of territoriality. Can we harmonize these issues? There has to be no discrimination within the EU: what you grant to a national author, you grant it to a EU author. BUT. We had a single digital market for goods, but not for services. Once a work was embedded on a product, it fell within EU common law; but it happens otherwise with services. And here is the big deal we are facing now.

Rome EC Treaty:

  • Subsidiarity principle, only applies when objectives are better achieved by the EC than by member states individually.
  • Harmonization through directives, that need national implementation.
  • Lisbon EU Treaty Art. 118 TFEU: mandate for uniform IP rights in all EU. Need for a regulation on EU copyright?

We now have a bunch of EU directives that deal with computer software, rental and lending rights, satellite and cable communications, terms of protection, databases, copyright, resale right, enforcement, orphan works, collective management (of rights) organizations and music online, etc.

There’s a big deal trying to harmonize concepts like what is a work, what is an author, what are related rights, etc. Different directives refer to works and authors in very different ways.

Same happens with moral rights, exploitation rights, remuneration rights… Remuneration rights are especially difficult to address as they vary very much across countries, in what they cover, in the amount or kind of remuneration, its management, etc.

About communication to the public, there is no clear consensus on what the “public” is, communication, display or performance, etc.). Here the concept of linking to (protected) content becomes crucial, of course including the role of the agent that created the link.

The harmonisation of limitations to intellectual property rights are also scattered across different directives and regulations in general.

Licensing, enforcement… again matters of disagreement and lack of harmonization.


Wouter Tebbens: copyleft software heavily relies on copyright, and the design and the product are very much the same. But what happens with copyleft hardware, where the design and the product are much different? Xalabarder: it is uncertain. It depends on whether you just protect the design, and then the product is not affected, or if you take into account the design embedded in the product. It is difficult to tell.

Some conclusions?

  • Fragmented harmonization of some issues: work, author, rights, limitations…
  • Court of Justice of the European Union (CJEU) role is paramount.
  • Territorial licensing allowed (for services) as “original sin”.
  • Member states “reception” of EU copyright law and caselaw?
  • Subsidiarity principle.
  • Time for a copyright unitary title?


12th Internet, Law and Politics Conference (2016)

If you need to cite this article in a formal way (i.e. for bibliographical purposes) I dare suggest:

Peña-López, I. (2016) “IDP2016 (III). Raquel Xalabarder: Copyright law for a digital single market: how far are we from achieving it?” In ICTlogy, #154, July 2016. Barcelona: ICTlogy.
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