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Thomas Hoeren Intellectual Property and Copyrigkt Law in the EU

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Thomas Hoeren Intellectual Property and Copyrigkt Law in the EU .Serials - Vol.9, no.3, November 1996 Thomas Hoeren Intellectual property and copyrigkt law in the EU Thomas Hoeren Paper prepared for the Third European Serials Conference, Ireland, September 1996 This article traces the ewlution of In 1950, Lord Denning gave a remarkable lecture in Stratford- wpyright law within the upon-Avon on 'theatre and law'. He described the theory that the European Union, and highlights law is like a stage play. In his view, lawyers are similar to actors. some of the problems. Both speak in old-fashioned language in traditional costumes on a stage while the audience never knows whether it is listening to a tragedy or a comedy. In my view, Denning is perfectly right. His comparison between law and theatre can be verified especially by taking a glimpse at the features of European copyright law. Therefore, let us look at the European copyright play. Dramatis personae: The European Commission and the national legislators The description of all plays traditionally begins with a dramatis personae, a list of figures involved in the play. Therefore, let me start with a short illustration of the institutions which take part in the development of a European copyright system. National legislators The essence of our play are legal rules set up by legislators. Up to now, copyright law has been governed by national legislators. Each country has its own copyright acts, with different levels of protection and a bewildering range of divergent exemptions. It is common knowledge that these differences result from two different copyright traditions. The Latin countries follow the concept of the author's personality while the Anglo-Saxon countries have adopted the concept of the economic value of the Prof Dr Thomas Hcreren is kzw copyrightable work. The differences between these systems centre ProfessorlHeaf oif the institue for around three main points: Civil haw and International - the Latin system emphasises the importawe of the authofs business Law at the Heinrich- Heine-University, Diisseldorf moral right, that is especially the right to oppose any and a Judge at the Court of undermining of the integrity of his work; Aplof Diisseldorf (Coyright - the tradition in the Latin countries is to hold that salaried Senate) status does not in any way detract from the rights accorded to Brinckrnnnnstr 8-10, 040225 Diisseldorf, Germany authors; Intellectual property and copyright law in the EU Thomas Hoeren Serials - Vo1.9, no.3, Nmmber 1996 the standard of origmality tends to be very institutions have regulatory tools at their high in Latin countries because of the fact disposal and can enact Community laws': that only works of literature and art are regulations and directives that have to be traditionally protected by copyright. implemented by the Member States. Not only In a multimedia area, these differences in the does the commission have the power, it also has legal regimes tend to become severe obstacles the support of the audience to change the play. for international trade. Multimedia works are It is a very vivid and interactive audience which international works, integrating the creativity of tries to raise its voice, especially in the light of authors from many countries and being the information society. There are, of course, distributed worldwide. In the face of the the lobby organisations of authors and creative internationalisation of the rights market, industries. Furthermore, there are holders of copyright needs further harmonisation. related rights, the performers, the producers of In the past, several attempts have been phonograms and film works, broadcasting carried out to harmonise international copyright organisations and the collecting societies. law. The first international convention was Opposite to these groups, there are the concluded in 1886: the Berne Convention for organisations representing the interests of users the Protection of Literary and Artistic Works. or consumers. Finally, there are totally new Even today, it is still the most important players, specifically involved in the multimedia international instrument in the field of context as the network operators and access copyright law. However, the Berne Convention providers. All these divergent groups are part only pves a very broad legal framework. In of the fascinating new play entitled The addition, it has not been adapted to the needs of European copyright law - a play in five acts and the twenty-first century. Therefore, I will not one long epilogue'. Open the curtain. refer to the Convention and the WPO as its First Act: Directive 911250 on software guardian. protection The European Commission The first act leads us to the software protection directive of May 1991. We must take into Instead I will introduce another person, the consideration that software is the fundamental most important actor in the play. In 1957 this component of the information superhighway. actor entered the stage: the European In addition, it has been the first digital product; Commission. The Treaty of Rome establishing thus rules on software protection are prototypes the European Economic Community aims to for any copyright regulation in the new digital provide freedom for movement of goods and era. The Software Directive provides that services within the Community. The Treaty computer programs are now protected by guarantees this freedom by prohibiting copyright as literary works. Through the concerted practices between undertakings and Directive, the member states have harmonised the abuse of dominant positions. The Treaty the exclusive rights conferred on the right- therefore bans all restrictions on free movement holder of software. The directive also defines and all measures having equivalent effects. acts which are necessary to the use of a program Prohibitions and restrictions based on the and which may be performed without existence of intellectual property rights are authorisation. allowed and conversely, the exercise of these rights may depend on the bans enacted by the Second Act: Directive 92/100 on rental rights provisions of the Treaty. Until 1991, the new actor remained mute. But Eighteen months later - the second act. In then, a strange thing happened. He changed the November 1992, the European Council adopted story of the old play and finally forced all the Directive on rental rights. The Directive European Countries to take part in a new play establishes exclusive rental and lending rights he had written. In fact, the Commission has the for all works and all matter protected by legal competence to do so. The European copyright. Member states are required to make Serials - Vo1.9, no.3, NaDember 1996 Thomas Hoeren lntelledual property and copyright law in the EU provision for a right to authorise or to prevent transmission. Because of different national the rental and lending of originals and copies of rules of copyright it was unclear whether copyrightable works. 'Rental' means making several national laws should be applied available for use for a limited period of time. cumulatively to one single act of broadcasting. The rental right belongs: The Directive has implemented new rules for - to the author in respect of the original and this case. These rules are not only relevant to copies of the author's work, the film sector. As I will prove later on, the - to the performer in respect of fixations of Commission tends to apply the regulation on the performance, satellite and cable transmission to online services. According to the Commission, - to the phonogram producer in respect of communication to the public by satellite occurs the phonograms, and - where the programme-carrying signals are to the producer of the first fixation of the introduced under the control or responsibility film. of the broadcasting organisation into an The rental rights may be transferred or uninterrupted chain of communication leading assigned, or subject to the granting of to the satellite and down towards the earth. contractual licenses. Pursuant to the Directive, Normal technical procedures relating to authors or performers have an unwaivable right programme-carrying signals are not considered to receive equitable remuneration. The as interruptions to the chain of broadcasting. administration of this right to obtain equitable The directive requires member states to provide remuneration may be entrusted by authors or that the author of a copyright work will have performers to a collecting society. The member the exclusive right to authorise or prohibit states may regulate whether and to what extent communication to the public by satellite. In collecting societies may administer the right. addition, the member states have to ensure that The rental right is without any prejudice to any copyright owners may grant or refuse public lending rights provided for in any authorisation to a cable operator for cable legislation. retransmission of a broadcast only through a In the past months, all member states have collecting society. This concept of collective engaged in implementing the Directive. They licensing is important for my further all had similar problems with the considerations on digtal rights. implementation. For instance, it remained unclear whether the right to administer an Fourth Act: Directive 93/98 on harmonking the author's rental right can be transferred under a term of protection of copyright and certain related copyright assignment. In addition, it had to be rights. decided how the equitable remuneration The fourth act is related to the question of time. mentioned in the Directive is to be calculated. The legal protection of the works and services Finally, the question of assertion is still open. can only be harmonised where the term of According to the Directive, the rights to protection is the same throughout the whole of equitable remuneration will apply in contracts Europe. The Terms of Protection Directive of entered into before 1 July 1994 only where October 1993 establishes a high level of authors or performers or those representing protection where copyrightable works are them have submitted a request that it should protected for seventy years after the death of the apply before 1 January 1997.
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