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The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States

International Review of Intellectual Property and Competition Law (2012) Vol. 43, No.5, p. 567-594

Amsterdam Law School Research Paper No. 2012-82

Institute for Information Law Research Paper No. 2012-48

20 Pages Posted: 15 Sep 2012  

Christina Angelopoulos

University of Cambridge

Date Written: September 13, 2012

Abstract

The term of protection of copyright and related rights is generally considered to be one of the best harmonised areas of European copyright law. However, close examination of the EU Term Directive’s intricate provisions reveals a piecemeal and permissive approach to harmonisation which preserves many differences between the national rules. In this report, four main sources of legislative variability are identified and analysed: a) contagion from unharmonised areas of substantive copyright law; b) explicit exceptions to the harmonisation of the term of protection; c) national related rights of unharmonised term; and d) incorrect implementation of the provisions of the Term Directive into national law.

As a result, the desired harmonising effect has not been fully achieved: although a single rule may be applicable across the EU in theory, drastically divergent terms of protection may attach to the same information product depending on the jurisdiction within which protection is sought. In this way, the territorial nature of copyright undercuts harmonisation efforts, forcing the public domain to contract and expand according to divergent national rules. The result is a legislative framework that makes cross-border rights clearance calculation difficult, hampering end-users and cultural heritage organisations from taking full avail of the new opportunities now technically available for the digitisation and exploitation of the public domain. If the EU wishes to establish a truly harmonised term of protection for copyright and related rights, a more committed and comprehensive approach will be a necessary.

Keywords: Copyright and related rights, European copyright harmonisation, term of protection, public domain

JEL Classification: O34

Suggested Citation

Angelopoulos, Christina, The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States (September 13, 2012). International Review of Intellectual Property and Competition Law (2012) Vol. 43, No.5, p. 567-594 ; Amsterdam Law School Research Paper No. 2012-82; Institute for Information Law Research Paper No. 2012-48. Available at SSRN: https://ssrn.com/abstract=2145862 or http://dx.doi.org/10.2139/ssrn.2145862

Christina Angelopoulos (Contact Author)

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

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