Summary:
The European Union’s action has had an important influence on
the copyright laws of the Member States. By enacting legislation in the field
of copyright, the EU has indicated to Member States what kind of rights ought
to be recognised. The stated goal was to harmonise certain areas of national
copyright laws, the differences of which were said to hinder the establishment
and functioning of the internal market. Therefore, copyright harmonisation
has been achieved indirectly; i.e., not with the objective of having a holist
European copyright system, but solely because, lacking such harmonisation,
the internal market would be hampered. The problem with that approach is
that copyright has more to it than economic considerations, let alone internal
market ones. Copyright encompasses cultural and social aspects largely overlooked
or undermined by the legislature.
The main question that pops to mind is: could the European Union have done
differently? The correct answer to that question is: “we don’t
know”. We don’t know because the word “copyright”
was – and still is – absent from the Treaties. It is not clear
what the scope of the mandate of the Union is. Moreover, even if one could
manage to discern what the scope of that mandate is, it is still not clear
what kind of normative framework that competence will generate, as the prospectively
applicable competence norms are devoid of a normative compass.
In the European Union, Member States legislation in the field of copyright
has partially been harmonised by a set of Directives – the so-called
acquis communautaire . The acquis , as it will
be demonstrated, is not in tune with the very essence of copyright. For one,
it does not reflect a correct balance between the interests of users and
creators.
It is submitted that the status quo is, at least in part, due to (a) the
obscure nature of the mandate of the European Union and (b) the lack of normative
guidance shown by the competence norms used thus far. This projects intends
thus to deal with these two problems.
