Two recent events provide a clear example of the current EU policy on copyright issues. On July 16, 2008, the European Commission has declared legally invalid a whole series of clauses contained in bilateral agreements of representation signed by societies for the collective management of authorial rights that are members of the International Confederation of Authors and Composers.
The provisions that must be eliminated concern the restrictions concerning authors adhering to authorial societies in a different member state from the one they are legal citizens in, and the territorial restrictions that prevent the societies for the collective management of right to sell commercial licenses to subjects operating outside the national territory. In simpler words, authors and commercial operators are now free to seek the society that most suits their needs. The proposal of a directive of the European Commission sent to the European Parliament and Council concerning the duration of copyright protection and related rights bears the same date. In particular, the changes would extend the prerogatives of artists, interpreters and producers of phonograms from the current 50-year limit after publication to 95 years after publication. Although the proponents are trying to provide a rationale for this citing the longer life expectancy of artists, and the necessity of maintaining economic incentives at a time when online piracy is damaging the recording industry, the proposal actually mirrors the Copyright Term Extension Act passed in the US a decade ago. The latter brought to 95 years the duration of copyright protection for corporate works (i.e. artistic works created by employees, who transfer the copyright to the employer, which, in the vast majority of cases, is a corporation.). This is part of a larger overhaul of the existing European legislation on copyright in the information society that goes under the name of "forward-looking package".
On the one hand, the proposed directive seems to continue in the work of consolidating the Single Market, by aligning itself with normative choices made by other regulatory regimes. On the other hand, a mechanism of regulatory competition seems to be in place, by which legal systems tend to imitate each other so that they can also benefit from royalty income for a longer period of time. On the other hand, the directive seems intended to strengthen competition in the Single Market, and thus such decisions are meant to liberalize the sector for the collective management of rights. However, if both initiatives end up being adopted, the net result will be a higher degree of liberalization of an increasingly proprietary regime.
by Maria Lillà Montagnani ,
Assistant Professor in Commercial Law, Bocconi University