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Purpose of Copyright
Purpose of Copyright
11
Introduction
The author
Since the early 1990s, copyright policy has increasingly
stakeholders are united in their dissatisfaction.7 Disillu- but distinct from national and theoretical debates. The
sionment on all sides is fuelled by reforms being delayed article concludes with insights into how reform propos-
and continuously falling short of expectations.8 In other als need to be framed to be successfully adopted at EU
words, the EU copyright policy process is restricted if not level.
failing.9
This article argues that one key reason why reforms The collapsing external normative
achieve little is the lack of clarity about what EU copy- framework for copyright policy
right policy seeks to achieve in the first place. In par-
ticular, the debates rooted in copyright protection at While a full review of the literature is beyond the scope
member state level underestimate the defining role of of this article,11 it should be noted that the basic nature
the Single European Market (SEM) at EU level. The of copyright has always been disputed. While some see
from the rationales for copyright protection downwards any policy analysis has to pay particular attention to
to stakeholder interests and to the design of individual framing.23 Policies essentially provide a solution to a
provisions. These efforts have effectively stalled as it has specific issue but the same issue can be framed in differ-
proven impossible to identify the optimum level of pro- ent ways which in turn affects which solution is deemed
tection;16 the centuries-old writing lack specificity, gener- the most suitable. For example, users are generating con-
ating only rough guiding principles;17 and the proposed tent based on protected copyright works and share them
changes are too far from the status quo, making their online. Whether this behaviour is considered problematic
implementation in the politicized environment impos- under copyright policy depends on what part of the activ-
sible.18 Today, even commentators in the mainstream ity is emphasized.24 If the activity is framed as individual
argue that copyright should be based on new princi- fans paying homage to their favourite author without a
ples,19 replaced by an alternative system of government commercial motive, targeting the fan with copyright is
more reliably be assessed inductively against the inter- narrative. It should be noted that individual recitals were
nal policy aims and characteristics rather than external coded to more than one theme if necessary. This means
benchmarks.28 This traditionally entails an analysis of that the number of references attributed to a specific code
government goals based on discussion papers, parlia- is comparable and the more numerous themes can be
mentary debates and even the media for both explicit presumed to be more influential.
and implicit aims. However, this methodology cannot
be directly applied to the idiosyncratic EU policymak-
ing. National political systems are dominated by political The primacy of the single European
parties which coordinate between the executive branch market
(government) and the legislative branch (parliament). EU-level copyright protection is fundamentally shaped
This ensures that legislative proposals reflecting govern- by the SEM.31 Copyright here plays an essential role: it
and the scholarly literature,36 the EU explicitly refers to anyone owning the copyright which includes the author,
copyright as a property right.37 Property by its nature employer, commercial entity (neighbouring rights) and
is designed to allow for the most efficient allocation of assignee depending on the specific context. Overall, ‘right
resources in the market. In copyright law, the property holder’ is significantly more common than author.43 The
status facilitates the transfer of rights to those who can personality of the author, central to copyright theory,
exploit a work most efficiently and therefore maximize does not feature prominently either. For example, there
the benefits for both the right holder and society more is only one recital which directly refers to the author’s
broadly.38 The emphasis is therefore on the economic dignity or personality.44 The whole discourse is domi-
exploitation of works. This has several distinct effects. nated instead by rewards (as opposed to entitlements).45
First, the market focus determines that the creation This gap makes it less surprising that reform proposals
of works requires primarily economic resources39 and based on entitlements and the author’s personality have
international level, the response has followed this familiar safeguarding rewards while keeping the economic poten-
pattern, conceptualizing unauthorized uses as piracy and tial of new technologies in mind.53 In practice, EU policy
therefore something harmful that needs to be controlled. targets the economic value created and not the lack of
However, this narrative is incomplete for copyright at authorization. This approach crucially depends on who
EU level. Copyright law is territorial in nature and mem- benefits from the unauthorized use.
ber states traditionally reform copyright to meet chal- In the first situation, copyright is expanded because
lenges, but digital technology makes the national borders the economic value can be easily appropriated by a small
increasingly porous.48 Differences in protection can dis- number of freeloaders, distorting competition on a level
advantage some actors and therefore negatively affect the playing field. For example, the Database Directive intro-
level playing field on which the SEM is build.49 In other duced new work types and justified their protection (the
words, the key problem the EU seeks to address is not sui generis database right in particular) on the basis of
time, the narrative presented by the recitals emphasizes preferences. The aim was to create indirect harmoniza-
that users have the right to benefit from the opportunities tion in an area where member states could not agree
new technologies offer.59 The solution adopted weights through a non-compulsory but exhaustive closed list of
the conflicting aims with the concept of ‘appropriate exemptions. It has not worked66 but its detrimental effect
reward’: remains.
The remuneration of authors and performers should be The interests of the user are best served
‘appropriate and proportionate to the actual or potential
economic value’ of the licensed or transferred rights […].60
through the market
The influence of the SEM also affects the users as stake-
In the example, the income stream benefitting right holders more broadly. Much of the literature argues that
59 16 references across 5 instruments alone refer to a user right to benefit 66 L Guibault, ‘Why Cherry-Picking Never Leads to Harmonisation: The
from technology. Case of Limitations on Copyright under Directive 2001/29/EC’ 1 (2010)
60 DSM, recital 73 also refers to the criteria: taking into account the author’s JIPITEC 55.
or performer’s contribution to the overall work or other subject matter and 67 See The Collapsing External Normative Framework for Copyright Policy.
all other circumstances of the case, such as market practices or the actual 68 Famous examples include the protests against ACTA (see for example D
exploitation of the work. In InfoSoc, recital 35 which gives more detail on Lee, ‘ACTA: Europe Braced for Protects Over Anti-Piracy Treaty’ (BBC, 8
factors to be taken into account, including the specific context, harm, March 2012). Available at http://www.bbc.co.uk/news/technology-1690
payments already made and the use of DRM. It may even lead to no 6086 (accessed 3 August 2021); the rise of pirate parties in several member
payments being required. states (Germany, Sweden, and most recently Czech Republic (W Nattrass,
61 DSM art 17. ‘The Remarkable Rise of the Czech Pirate Party’ (The Spectator, 23
62 A variation of this can be seen in the fragmented licensing solutions February 2021). Available at https://www.spectator.co.uk/article/the-
discussed below. remarkable-rise-of-the-czech-pirate-party (accessed 3 August 2021) and
63 For an analysis of this option, please see: T Rendas, ‘Destereotyping the European Parliament (such as the Julia Reda who became the EP
Copyright Wars: The “Fair Use vs. Closed List” Debate in the EU’ (2015) rapporteur for the copyright reforms)) but also boycotts against key pieces
SSRN. Available at https://ssrn.com/abstract=2657482 (accessed 3 August of legislation, such as the Wikipedia and Reddit in 2019 (J Vincent,
2021); M Kleinemenke, Fair Use im deutschen und europäischen ‘European Wikipedias Have Been Turned Off for the Day to Protect
Urheberrecht? Eine rechtsvergleichende Untersuchung zur Flexibilisierung Dangerous Copyright Laws’ (The Verge, 21 March 2019). Available at
des urheberrechtlichen Schrankenkatalogs nach dem Vorbild der https://www.theverge.com/2019/3/21/18275462/eu-copyright-
US-amerikanischen Fair Use-Doktrin (Nomos 2013); M Senftleben, ‘The directive-protest-wikipedia-twitch-pornhub-final-vote (accessed 3 August
Perfect Match: Civil Law Judges and Open-Ended Fair Use Provisions’ 2021)).
(2017) 33 American University International Law Review 231–86; in the 69 44 recitals (13 instruments) refer to the users as a group and interests
context of recent case law: T Rendas, ‘Advocate General Szpunar in Spiegel which reflect the societal good in general, for example through access to
Online (or why we need fair use in the EU)’ (2019) 14 Journal of information.
Intellectual Property Law & Practice 265–67. 70 This is an economic reasoning of interests which presumes that authors
64 Directly contradicts DSM Directive recital 3 which emphasizes the need to and right holders have the same preferences (get financial rewards) while
have a future proof approach. users are presumed to prefer free access to works.
65 28 references across 10 legislative instruments. 71 DSM, recital 6.
Simone Schroff · The purpose of copyright—moving beyond the theory ARTICLE 1269
recognizes that excluding non-right holder interests and market concerns stated in recital 1 outweigh the cultural
especially member states’ different approaches to them concerns from recital 3.
has a negative impact on the functioning of the market The focus on exemptions as a balancing mechanism
more broadly.72 In other words, protecting the market is oversimplified although because it neglects the effect
requires well-defined user exemptions that balance the of exclusive rights. User interests are not only shaped by
interests of right holders and users, especially in the dig- exemptions, but also the control given to right holders
ital age.73 The EU approach is characterized by a recog- in the first place. For example, it has been convincingly
nition that, in some contexts, societal benefits from free argued that the reproduction right in particular is over-
access outweigh the interests of right holders. reaching by covering all kinds of copying activities. The
However, all exceptions are seen a necessary evil that applicable exemption for lawful uses is not sufficient to
needs to be limited as much as possible to ensure that remedy this, especially in the context of digital technol-
Charter since 2012. The reference to it can therefore be intermediary tends to be weak.88 This weaker contractual
seen as a formality, adding little substance. This has also position of authors and performers features prominently
been confirmed by recent case law.85 It is also striking in the EU narrative. For example:
that the main focus is not on the traditional exemp-
tions like education but flourishing cultures in general. Authors and performers tend to be in the ‘weaker contrac-
Here, copyright is a tool to achieve it rather than a hin- tual position when they grant a licence or transfer their
drance imposes costs as is the traditional frame applied rights’ […] for the purposes of exploitation in return for
to exemptions. In addition, it implicitly recognizes not remuneration […].89
only the benefits of access by society but also the threat the
SEM poses to smaller communities, in terms of opening A systematic solution to remedy this would entail
the market to more dominant players from other mem- measures to strengthen the author’s position in contract
income while the majority make very little), the long tail from extended collective licensing schemes for out-of-
(most income is generated in a very short timeframe) and commerce101 and orphan works102 to the management
uncertainty about which works will be successful.95 In of music rights in the online context.103 The dangers of
response, a record of past success is used as the predictive market intervention are clearly reflected in the narra-
proxy for future economic value.96 This means that less tive although. Legal certainty is considered key to any
successful authors have an inherent need in build their functioning market and, as a result, existing contractual
reputation. It also implies that a lack of success becomes arrangements are often explicitly safeguarded.104 Instead,
more relevant over time: less successful authors are even intervention is limited to excluding ‘accidental’ infringe-
less likely to become successful in the future. Superstar ment created by contractual issues from infringement
clauses are therefore not a suitable tool to address the actions.105 This means that when contractual freedom
skewed distribution of income between intermediaries starts to be a hindrance in its own right by affecting
As authors and performers tend to be in the weaker con- encouraged through market mechanisms which serve all
tractual position when they grant licences or transfer their main stakeholder groups. Any deviation for societal ben-
rights, they need information to assess the continued eco- efit needs to be as limited as possible and always remedy
nomic value of their rights, compared to the remuneration the market harm they create.
received for their licence or transfer, but they often face a lack
At the same time, the SEM’s core principle of contrac-
of transparency. […]111
tual freedom in combination with the nature of copyright
and the creative industries creates fragmented licensing
The use of competition rules in copyright licensing
markets and an unequal distribution of profits as a result
has attracted criticism in the past.112 For example, the
of bargaining power inequalities. The solutions are always
CMO directive juxtaposes the interest of authors in social
geared towards the functioning of the SEM but the tools
protection—especially relevant for the less successful
used vary. The author–intermediary link is subject to