European Parliament votes in favour of the new EU Copyright Directive
Controversial IP legislation
Today, the European Parliament voted in favour of the new EU Copyright Directive. This controversial IP legislation passed with 348 in favour, 274 against and 36 abstentions. Within 2 years (medio 2021), the Directive has to be implemented in the copyright legislations of the Member States. However, articles 11 (now 15) and 13 (now 17) will do the EU internal market more harm than good.
Artificiële Intelligentie & Recht managing partner and IP lawyer Mauritz Kop delivered copyright expertise to the European Parliament during the legislative process.
Intellectual property law has become the new battleground for ideas on how the Digital Single Market strategy should deal with transformative innovation such as online platforms, big data, quantum computing and artificial intelligence. This potentially hinders rapid innovation and undermines the competitive position of Europe vis-à-vis China and the United States.
Civil law statutes should be concise
Our civil law tradition statutes should be concise, where common law case law statutes are precise. Codification of intellectual property law in a civil law system isn’t easy. However a Copyright Directive should be comprehensive, exhaustive and preferably technology neutral. A technology neutral legislative framework diminishes the risk of statutes becoming outdated in the (near) future. A legal framework built with a specific technology in mind, or to prevent market failure will have a difficult time dealing with cases that do not fit clearly into the existing statutes. Furthermore, IP law should honour and comply with common rules, principles, rationales and justifications of copyright.
During the Copyright Reform, self-serving groups have captured the regulatory system (furious lobby, myriad of 1000+ amendments), abandoning the public interest. The result is not concise, nor precise.
Technology-neutral legal framework
Overprotection of online copyrights leads to market barriers for fragile startups. A better solution would have been to introduce a technology-neutral open standard, exception or limitation such as the American fair use principle, with more breathing room for both consumers and online platforms. This policy would guarantee a rich European cultural diversity, privacy and freedom of expression of citizens, stimulate innovation and creativity in the longer term, close the value gap and do justice to the system of intellectual property rights.
Copyright specialist Mauritz Kop:’’The result is not concise, nor precise’’
Consumer welfare can be protected more effectively by consumer rights and competition/ antitrust law than by IP law. The introduction of additional rights (art. 15) results in an even more overcrowded and overgrown legal landscape, which could result in stagnation and legal uncertainty.
Finally, the new Copyright Directive is food for expensive and long-term lawsuits. The European Court of Justice (ECJ) is increasingly being given a judicial lawmaking function, where, within the trias politica, this should primarily be Commission and Parliament prerogative.