Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Sunday, June 5, 2022

Geiger and Mangal on Regulating Creativity Online: Proposal for an EU Copyright Institution @ChristopheGeig1 @nsmangal @GrurInt

Christophe Geiger, Luiss Guido Carli University, and Natasha Mangal, University of Strasbourg, CEIPI, are publishing Regulating Creativity Online: Proposal for an EU Copyright Institution in GRUR International: Journal of European and International IP Law (2022). Here is the abstract.

In 2019, a new copyright directive was passed in the EU aiming to modernize the legal rules established in the 2001 InfoSoc Directive, as well as promote a better functioning ‘digital single market’ for the exploitation of creative works and other protected subject matter. However, after extensive negotiations and compromises reached at the legislative level, the ongoing implementation of the directive into national law seems rather to deepen existing regulatory differences between Member States. The result of this (and past) failed attempts to approximate national copyright regimes had led to the fact that copyright is the least harmonised of all IP rights in the EU. Furthermore, legislative interventions so far have often attracted criticisms for not sufficiently taking into account public interest concerns and safeguarding fundamental rights in the offline and online world. Therefore, the time has come to consider another perspective on harmonisation: one which focuses on improving the existing institutional and regulatory arrangement for copyright in the EU by providing a new avenue for Member State cooperation in oversight, policy-building and enforcement. In recent years, particularly considering the many challenges of regulating conduct online, there has been growing attention towards re-centralizing certain regulatory tasks to public, independent EU level authorities. Given the growing number of cross-border enforcement issues in administering copyright in the online environment, an EU level regulator may also be better placed to monitor the copyright-relevant activities of online platforms, centralize EU wide dispute resolution, deliver policy advice on the future design of copyright legislation, and help coordinate Member State enforcement and regulatory practices. Such a public regulator would also likely be in a better position than private actors to guarantee a fair balance of interests and the respect of fundamental rights online, giving shape to what has recently been conceptualized as “digital constitutionalism”. If created, in the long term such an authority may help to ensure greater levels of transparency, predictability and certainty for EU copyright stakeholders participating in the online content marketplace. Centring on the premise that the established institutional and regulatory frameworks in the EU are no longer capable of promoting the goals of a modern, online copyright, this article explores a specific solution in detail: introducing a new, EU-level public regulator for copyright. Part I first evaluates the available room for manoeuvre in the existing regulatory and institutional framework for administering copyright law in the EU by examining recent trends and developments in EU institutional frameworks. The examples of the European Data Protection Board and the “European Board for Digital Services” in the DSA are analysed in order to identify parallels and draw inferences for a potential equivalent in the field of copyright. Part II then identifies several key aspects of the CDSM Directive that leave important questions of regulatory design unanswered and proposes several available “institutional” options to improve its implementation. The article concludes with recommendations.

Download the article from SSRN at the link.

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