The “Propertization” of EU Copyright Law
The use of property rhetoric to support the quest for expansion of the scope and term of protection of copyright is not a new phenomenon. In eighteenth century England, the Stationers’ Company, a corporation enjoying full control over printing activities, defines copyright as “undoubted property” to lobby for reclaiming the privileges lost due to the nonrenewal of the Printing Act. After the enactment of the Statute of Anne, which reduces the duration of printing monopolies, a comparable argument is used to advocate for the existence of an absolute and perpetual common law copyright, independent of the rights created by law.In the same span of years, publishers from Paris fight to strengthen their position by claiming the existence of a proprie´te´ literaire, defined as perpetual natural right, while a few decades later, after the Revolution, authors’ rights are statutorily qualified in terms of property rights, which represent the highest expression of the new freedom acquired with the defeat of the Ancient Regime. Several American colonies use analogous definitions until the advent of the federal Constitution and the first federal Copyright Act, which opt for a neutral, utilitarian approach. Here also,
exactly as it happened in England after the Statute of Anne, local publishers push for an expansion of the scope and term of protection by arguing for the existence of a common law copyright, clearly worded in proprietary terms. Although the historical process of formation of copyright and droit d’auteur shows in both cases the presence of strong property rhetoric, the paths followed by the two models diverge at a very early stage. The most direct explanation of the phenomenon—less political and more technical—lies in the opposite semantic implications of the word “property” in civil and common legal systems. In the Anglo-Saxon tradition, the lexeme is a synonym of ownership or asset and does not represent an autonomous, characterizing legal category. Hence, the qualification of a right in terms of “property” does not carry systematic consequences, nor does it have an impact on its regulation. The characteristics of intellectual property rights descend, in fact, only from their monopolistic nature and the utilitarian rationales underlying their protection. On the contrary, the continental paradigm is heavily influenced by the Pandectist tradition, which limits the subject matter of property to tangible goods, and links the definition of a right in proprietary terms to the application of specific rules concerning the creation, circulation, and protection of the entitlement. According to these dogmas, intellectual property is not a form of property, nor can it ever be. France constitutes an exception, where property is a concept characterized by weak classificatory power. Its scarce cogency explains why the personalist nuance of the proprie´te´ literaire could predominate and distance author’s rights from the property model delineated by the Code Napoleon and why the consequences of such a development share very little with the effects of the recent copyright propertization. French literary property mirrors the sacred link between author and work, where the work represents the materialization of author’s personality. This aspect is of such key importance to the development of the model as to have influenced the way that exclusive rights and exceptions are conceptualized. Personality rights, unlike monopolies, are not supposed to be tightly controlled in their exercise, while their superior hierarchical status limits the number of cases where flexible clauses are needed to balance them with other conflicting rights. Consequently, exclusive author’s rights are shaped in broad and flexible terms, while exceptions and limitations are exhaustively determined by law. Dissimilarly,
the Anglo-Saxon model has a strong utilitarian inspiration, where the incentive offered to authors is justified by the social need to create a marketplace for ideas and to stimulate the creation and diffusion of knowledge. Since copyright is a monopoly granted for public goals and not an idiosyncratic natural right, exclusive rights are listed in a close and exhaustive manner, while exceptions are worded as flexible clauses, so as to allow courts the possibility to implement the law according to its underlying goals. EU copyright law departs from both models. Its pronounced market rationales are rooted in the original lack of competence of the Community in the field, and the consequent need to ground its intervention on the necessity to remove obstacles to the internal market. Born as a sterile creature, EU copyright is unable to embed the philosophical inspirations that have characterized the continental and AngloSaxon traditions since their onset. The shift is already visible even in the earliest consultative documents. The goals of harmonization, according to the first Green Papers and subsequent follow-ups, are to strengthen the internal market and to stimulate competitiveness and investments. Meanwhile, the necessity to balance market needs with the promotion of access and participation to cultural life is confined to mere declamatory statements or introduced in the context of goals of production and commercialization of cultural goods and services. Similar words can be found in the first Directives, which repeatedly mention the need to protect investments, to stimulate the
exactly as it happened in England after the Statute of Anne, local publishers push for an expansion of the scope and term of protection by arguing for the existence of a common law copyright, clearly worded in proprietary terms. Although the historical process of formation of copyright and droit d’auteur shows in both cases the presence of strong property rhetoric, the paths followed by the two models diverge at a very early stage. The most direct explanation of the phenomenon—less political and more technical—lies in the opposite semantic implications of the word “property” in civil and common legal systems. In the Anglo-Saxon tradition, the lexeme is a synonym of ownership or asset and does not represent an autonomous, characterizing legal category. Hence, the qualification of a right in terms of “property” does not carry systematic consequences, nor does it have an impact on its regulation. The characteristics of intellectual property rights descend, in fact, only from their monopolistic nature and the utilitarian rationales underlying their protection. On the contrary, the continental paradigm is heavily influenced by the Pandectist tradition, which limits the subject matter of property to tangible goods, and links the definition of a right in proprietary terms to the application of specific rules concerning the creation, circulation, and protection of the entitlement. According to these dogmas, intellectual property is not a form of property, nor can it ever be. France constitutes an exception, where property is a concept characterized by weak classificatory power. Its scarce cogency explains why the personalist nuance of the proprie´te´ literaire could predominate and distance author’s rights from the property model delineated by the Code Napoleon and why the consequences of such a development share very little with the effects of the recent copyright propertization. French literary property mirrors the sacred link between author and work, where the work represents the materialization of author’s personality. This aspect is of such key importance to the development of the model as to have influenced the way that exclusive rights and exceptions are conceptualized. Personality rights, unlike monopolies, are not supposed to be tightly controlled in their exercise, while their superior hierarchical status limits the number of cases where flexible clauses are needed to balance them with other conflicting rights. Consequently, exclusive author’s rights are shaped in broad and flexible terms, while exceptions and limitations are exhaustively determined by law. Dissimilarly,
the Anglo-Saxon model has a strong utilitarian inspiration, where the incentive offered to authors is justified by the social need to create a marketplace for ideas and to stimulate the creation and diffusion of knowledge. Since copyright is a monopoly granted for public goals and not an idiosyncratic natural right, exclusive rights are listed in a close and exhaustive manner, while exceptions are worded as flexible clauses, so as to allow courts the possibility to implement the law according to its underlying goals. EU copyright law departs from both models. Its pronounced market rationales are rooted in the original lack of competence of the Community in the field, and the consequent need to ground its intervention on the necessity to remove obstacles to the internal market. Born as a sterile creature, EU copyright is unable to embed the philosophical inspirations that have characterized the continental and AngloSaxon traditions since their onset. The shift is already visible even in the earliest consultative documents. The goals of harmonization, according to the first Green Papers and subsequent follow-ups, are to strengthen the internal market and to stimulate competitiveness and investments. Meanwhile, the necessity to balance market needs with the promotion of access and participation to cultural life is confined to mere declamatory statements or introduced in the context of goals of production and commercialization of cultural goods and services. Similar words can be found in the first Directives, which repeatedly mention the need to protect investments, to stimulate the
industrial development, and to remove obstacles to the internal market. Directive 2001/29/EC (InfoSoc) completes the departure from the continental model with two further steps: firstly, the explicit introduction of a utilitarian rationale in its recitals and, secondly, for the first time, the definition of copyright in proprietary terms inspired not by jusnaturalism but by its utilitarian function of promoting and protecting creativity. No correspondent change, however, can be witnessed in the approach to limitations and exceptions. On the contrary, Recital 32 specifies that the list provided by Article 5 should be deemed exhaustive, following the good old continental paradigm. At the same time, Recital 31 rejects the adoption of a pure common law utilitarian rationale and negates the possibility to introduce flexible balancing clauses, by stating that national legislators shall intervene on exceptions only if a lack of harmonization may have an impact on the internal market. Similar arguments are advanced in the Directives enacted after 2001. The paradigm shift is inspired by the aim of granting to copyright a “high level of protection,” which the EU legislator seems to consider desirable in any case and representing an end in itself. This assumption has led several scholars to affirm the adoption of a new “property logic,” according to which author’s rights are so idiosyncratic that they need not to be justified in light of any further aim. The use of “logic,” instead of “dogmatic definition,” is understandably grounded on the almost complete absence of an explicit proprietary qualification of copyright in EU legislative and judicial texts, at least until the advent of the Charter of Nice and the ECFR. Despite being new, Article 17 of the ECFR does not represent a revolutionary norm. The ECtHR, following the EU Commission, already had the opportunity to apply to intellectual property Article 1 of the first Additional Protocol to the European Convention of Human Rights (ECHR), although without providing any significant systematic explanations. Yet the dry language of the text and the many divergent official translations have raised substantial interpretative questions. The English version of the ECFR states that intellectual property “shall be protected,” suggesting an interpretation of Article 17.2 as a constitutional declamation of a maximalist approach to copyright protection. On the contrary, the plain use of the verb “to be” in, e.g., German, Italian, and French (est, wird, e `) seems to indicate the mere reception of the existing judicial practice, justified by the inclusion of intellectual property under the competences of the Union after the Treaty of Lisbon. The permanence of a balance between copyright and fundamental rights in
EU law may support the second, less alarming interpretation. This does not mean, however, that Article 17 represents a merely descriptive provision without substantial effects. To see this, suffice it to mention the impact of its introduction on CJEU’s case law. In an increasing number of decisions, the Court refers to Article 17 to define copyright as a property—and thus fundamental right—and to operate a “fair balance” between equally ranked rights. Since the ECFR and the ECHR do not set any internal hierarchy, while the majority of national constitutions downgrade the hierarchical rank of property in light of its social function, this trend has naturally magnified the divide between EU and State sources. In addition, although the CJEU has already specified that Article 17.2 does not ensure absolute and unlimited protection to copyright, the vagueness of the balancing criteria has already led the Court to tautologically assert the existence of the balance on the mere ground that the law claims to have taken into account all the interests at stake. At the same time, the weak prescriptive nature of the “fair balance” makes national courts unable to understand and apply the test, marginalizing their role in the process. The consequent judicial inertia leaves unsolved the potential conflict between EU and national constitutional provisions and, with this, the question of the impact of Article 17 ECFR on the discretion left to Member States in adapting EU copyright law to the principles and values inspiring their legal systems. The divide separating EU and Member States’ copyright models becomes more evident still when juxtaposing the effects of copyright propertization in recent CJEU’s decisions with those of the equation of copyright and constitutional property in past national experiences.
EU law may support the second, less alarming interpretation. This does not mean, however, that Article 17 represents a merely descriptive provision without substantial effects. To see this, suffice it to mention the impact of its introduction on CJEU’s case law. In an increasing number of decisions, the Court refers to Article 17 to define copyright as a property—and thus fundamental right—and to operate a “fair balance” between equally ranked rights. Since the ECFR and the ECHR do not set any internal hierarchy, while the majority of national constitutions downgrade the hierarchical rank of property in light of its social function, this trend has naturally magnified the divide between EU and State sources. In addition, although the CJEU has already specified that Article 17.2 does not ensure absolute and unlimited protection to copyright, the vagueness of the balancing criteria has already led the Court to tautologically assert the existence of the balance on the mere ground that the law claims to have taken into account all the interests at stake. At the same time, the weak prescriptive nature of the “fair balance” makes national courts unable to understand and apply the test, marginalizing their role in the process. The consequent judicial inertia leaves unsolved the potential conflict between EU and national constitutional provisions and, with this, the question of the impact of Article 17 ECFR on the discretion left to Member States in adapting EU copyright law to the principles and values inspiring their legal systems. The divide separating EU and Member States’ copyright models becomes more evident still when juxtaposing the effects of copyright propertization in recent CJEU’s decisions with those of the equation of copyright and constitutional property in past national experiences.
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