European Commission

I. Introduction

Is it a mere coincidence that we are celebrating today and tomorrow the 10th anniversary of the Fordham Conference on "International Intellectual Property Law and Policy"? In fact, it isn’t. It is no coincidence that, as Hugh Hansen put it in his "Conference Director’s Note", the preface for the first volume of the Fordham Conference proceedings, "in the spring of 1992, Jean-François Verstrynghe, then the Head of Division DG III/E-4, suggested that Fordham University School of Law institute an annual conference on EC copyright law". Ten years ago, copyright harmonisation at European Union level was in a crucial, though fairly early stage, and had just reached cruising speed with the adoption of the Software Directive in 1991. The clock was ticking for accomplishing the European Internal Market by the target date of 1 January 1993. Around the same time, the negotiations on the TRIPs Agreement were concluded in substance. And finally, also ten years ago, efforts were initiated at international level to update the Berne and Rome Conventions. In those days, terms such as Information Society, cyberspace or digital rights were still unheard of, and yet we all felt that it would take our combined efforts to adapt copyright protection to the next millennium.

Now, at this 10th Fordham Conference, we can look back at ten successful years of copyright legislation. Seven European Union copyright Directives have been adopted, the TRIPs Agreement is being implemented worldwide, and the two WIPO "Internet Treaties" WCT and WPPT come into force in the first half of this year. We have done a good job, I think, and we have done it together: co-ordination between the USA and the European Union on these matters has always been the key for success.

But copyright, more than ever, is an evolving scenario. If we were to rest on our joint successes, we would miss out on the future and fail to structure copyright according to the challenges of new technology and new markets. In Brussels, we feel that we have reached a crossroad, where copyright policy has to compete with consumer, competition or other policies, and where the protection of creativity and investments is challenged by open source movements or the promotion of alternative business models. Besides a description of the ten years behind us, I will, therefore, try to present our visions for the future.

II. The Last Ten Years at Domestic European Union Level

1. The "First Generation" Directives

Copyright legislation at European Union level was initiated with the 1988 Green Paper on "Copyright and the Challenge of Technology". The Green Paper identified six areas, where the copyright laws of EU Member States should be harmonised so as to foster the functioning of the European Union Internal Market. In the opinion of the European Commission, five of these six areas required "immediate action".

Such action was taken and resulted in the adoption of five sectorial Directives, which harmonised the national copyright laws of the EU Member States. This first generation of harmonisation of the copyright laws of our Member States covers the legal protection of computer programs (1991), rental rights, lending rights and the main neighbouring rights (1992), satellite broadcasting and cable retransmission (1993), the duration of protection of authors’ rights and neighbouring rights (1993), and the legal protection of databases (1996)2. At least two of these Directives already have a link to the new digital environment: the Software Directive and the Database Directive with its combination of copyright and sui generis protection.

All EU Member States have now implemented these first five acquis communautaire Directives into their national laws. With respect to the sui generis protection for databases, which has been subject to rather controversial discussions in the US and elsewhere, it is interesting to note that the first Court decisions in EU Member States demonstrate its being put into practice. The European Court of Justice will soon have the opportunity to pronounce itself on the Database Directive, and particularly on the sui generis protection, as two cases are pending in Luxembourg.

The sixth Directive of this "first generation" of copyright harmonisation at Community level is the Directive on the Artists' Resale Right (the "droit de suite"). After five years of lengthy and sometimes dramatic discussions, it was formally adopted on 27 September 20013. According to this Directive, authors of an original work of graphic or plastic art – or his/her heirs or other beneficiaries – are entitled to receive a percentage of the sale price of a work when it is resold by art market professionals, such as salesrooms, art galleries and, in general, any dealers in works of art.

Outside the European Union, more than sixty countries recognise the resale right in principle, including the vast majority of the candidate countries for accession to the EU. Some other countries, among which the European Union art markets’ main competitors for the sale of modern and contemporary works, do not recognise the resale right: Australia, Canada, China, Japan, Switzerland and the USA. In order to dissipate the concerns expressed by some Member States, the Commission has committed itself to start conducting international negotiations with a view to extending the resale right at international level. The desirability of opening negotiations with a view to making Article 14ter of the Berne Convention compulsory was mentioned during the debates for the adoption of the Directive and is included in its Recital 7. The Commission intends soon to initiate negotiations at bilateral and multilateral level.

2. A New Generation: The Directive on Copyright in the Information Society

The six Directives just mentioned belong to the "first generation": they address rather sectorial issues, because they apply only to certain categories of works (software, databases) or rights (rental rights), they focus on a particular situation (satellite broadcasting, cable retransmission) or address a particular feature of protection (duration). The Directive on copyright and related rights in the Information Society, in short Info Directive, is different. It harmonises several essential rights of authors and four groups of neighbouring rightholders, limitations and exceptions thereto, the protection of technological measures and of rights management information, and an important aspect of injunctive relief, i.e. notice and take down vis-à-vis intermediaries. The Directive has the most horizontal impact of all acquis communautaire Directives. It is the European Union’s response to the challenge of structuring copyright protection in the new environment of the digital services. Truly, therefore, the Info Directive forms part of a new generation of copyright harmonisation.

It was adopted on 22 May 20014. Member States have to implement it into their national laws by 22 December 2002. With a view to accelerating the implementation of the Directive based on a maximum of common ground, we have already organised two meetings with EU Member States and are engaged in bilateral discussions with them. Tomorrow, my colleague Julie Samnadda will have the opportunity to describe in more detail the key points of the Directive and the state of play with respect to its implementation.

Let me recall that the adoption and implementation of the Directive is a prerequisite for ratification of the 1996 WIPO Treaties (both the WCT and the WPPT) by the European Community and its Member States. The Internal Market Council of 16 March 2000 had adopted the decision to adhere to the two WIPO Treaties on behalf of the European Community5. Though time is running very quickly and at least five EU Member States have national elections this year, this not making their lives any easier, we are confident that the European Community and all its Member States will adhere to the 1996 WIPO Treaties early next year.

III. Reflections for the Future

Although having already achieved a lot, we must further build upon these achievements. The legal framework of the acquis communautaire revolves around rights and exceptions and certain other features of protection, such as duration or the protection of technological measures. Our orientations for the future are twofold. Firstly, we have to make sure that the protection of copyright and related rights in the Internal Market of the European Union functions not only with respect to rights and exceptions and the features just mentioned, but that a level playing field exists also for the other two pillars of intellectual property protection: enforcement and rights management. Secondly, we must make up our mind where we go from here. This second orientation is fundamental; it is "European Copyright Revisited".

1. The Fight against Piracy

Regarding enforcement of rights, the Action Plan proposed in the Communication of November 2000, I informed about last year, has now been put into motion. Firstly, and most importantly, the Commission’s Internal Market Directorate General has largely completed the draft of a Directive harmonising the enforcement of Intellectual Property rights in the EU Member States. Indeed, it was felt timely and necessary to bring the very varying national legislations more into line with each other so as to ensure the proper functioning of the Internal Market. Those engaged in counterfeiting and piracy are all too happy to take advantage of those countries where their risks are the lowest. Moreover, to achieve results on a European wide plane, administrative co-operation among the EC Member States is essential. It is for this reason that a general framework for administrative co-operation and the basis for a more formal exchange of information should also be found in the proposed Directive.

Tomorrow, my colleague Barbara Norcross will have the opportunity to explain the structure and main content of the envisaged proposal for a Directive. It is hoped that this proposal will be presented officially by the Commission before the Summer, so that it may start meandering its way through the other European Institutions involved (the Council of Ministers, the European Parliament, Economic and Social Committee).

2. Rights Management

It cannot be stressed often enough that intellectual property rights constitute a significant merchandise; they are the rightholders’ "currency". Besides the rules on rights and exceptions and enforcement, the management and licensing of intellectual property rights, both individual and collective, has to be operational for the Internal Market to function properly. Rights management can rightly be called the "third pillar" of copyright protection. An operational management of rights is of particular importance in the context of the new Information Society services. And this is something not only of interest for rightholders, but for commercial users, licensees and consumers alike.

Nevertheless, this issue of rights management, or trading in rights, had not really been tackled at European Community level until the early 1990s. With the advent of the Information Society, it formed part of the consultation process initiated by the 1995 Green Paper on Copyright in the Information Society6. The consultations revealed indications for a need to harmonise some features of collective management at EC level, as the Commission explained in its 1996 Communication on the follow-up to the Green Paper7. Discussions continued, and in November 2000, the Commission organised a two-day hearing on collective management. In the light of this hearing and of numerous written submissions, the Commission is now finalising its conclusions.

Right now, we are working on a Commission paper, which will present our reflections on the legal framework for rights management in the European Internal Market. This document will cover both individual as well as centralised or collective rights management with its interface with digital rights management. Moreover, it will assess if and what kind of an initiative on rights management is needed at European Union level, and what it should cover. With respect to digital rights management, I will be happy to share some preliminary observations with you tomorrow in the session entitled "digital rights management".

3. European Copyright Revisited

As part of the European Commission’s job of safeguarding the correct implementation of the existing legal framework at European Union level, the acquis communautaire, Reports on various aspects have to be presented.

Hopefully, within the next weeks, the Commission will present a Report on the functioning of the public lending right as harmonised by the Rental Rights Directive of 1992. Another Report under preparation concerns the issue of authorship for cinematographic works and will touch upon the transfer of rights and contractual practices. Similarly, the Report on the implementation of the Satellite and Cable Directive of 1993 is almost ready for adoption by the Commission. Next year we expect to be in a position to present our Report on the functioning of the Database Directive and we hope that this Report (and the studies done in its preparation) will help us to share our positive experiences on the sui generis protection of non-creative databases with our international partners.

Just as this Fordham conference is now in its tenth edition, so the harmonisation process in the copyright field started just over a decade ago. With seven Directives in place, another Directive on enforcement of intellectual property rights forthcoming and the issue of rights management gaining shape, where should we go from here? Is further harmonisation needed, should the existing legal framework be consolidated, what are the options, and what are the necessities for structuring European copyright in the future?

Just as in Fordham, therefore, we felt appropriate to carry out a stocktaking and review exercise. Under the Spanish Presidency of the European Union, the Commission is planning its fifth bi-annual international copyright conference. The conference, entitled « European Copyright Revisited », will take place in Santiago de Compostela from 16 to 18 June this year in the Hostal dos Reyes Catolicos – both the Hostal building and the central square on which it stands have been declared world heritage by UNESCO and we feel very privileged to be able to use these premises.

The title of the Conference already indicates that it will be a stocktaking event. It is also for this reason that for the first time we are including a Round Table of judges (from various EU Member States and the European Court of Justice) who have direct experience of the workings of this European legislation. Two other new elements: there will be keynote addresses on "Copyright Awareness" and on "The Role of Copyright Policy as Compared to Other Policies" – both issues are crucial for developing our visions for the future. Just also as the previous four conferences, 250 participants from the EU and other continents will be able to gather in this forum for an exchange of views among interested parties from both the public and private sectors. There will be plenty of time between the four panels (covering digital rights management, country of origin versus territoriality, expectations from international organisations and updating/consolidation of the acquis) for interventions from the floor. We are convinced that the Santiago Conference will act as a milestone in the development of copyright and related rights in the European Union.

4. Preparation for Accession of Future EU Member States

While we are assessing the past ten years of copyright legislation at EU level and are trying to develop a vision for the future in this respect, our efforts continue for the preparation of the so-called "candidate countries" to become members of the European Union. Intellectual property is a very important part of the agenda, and a lot of work remains to be done. The "Enlargement Strategy Paper" of 8 November 2000, several "Road Maps" and evaluation documents have been indispensable building blocks for the discussions with the 13 countries concerned: Poland, Hungary, the Czech Republic, Slovenia, Estonia, Cyprus, Romania, Bulgaria, Lithuania, Latvia, Slovakia, Malta and Turkey.

Full implementation of the acquis communautaire Directives is vital, including the recently adopted Directives on Copyright in the Information Society and on Artists’ Resale Rights. In general, very good progress has been made in the countries concerned in the field of intellectual property protection. However, enforcement does often remain a problem. In this respect, it is of particular importance that the forthcoming Directive on enforcement of intellectual property rights becomes part of this acquis as soon as possible.

IV. International Developments

1. The Achievements

Fordham is a truly international conference. It reflects the fact that no legislator can nowadays afford to legislate in an isolated manner and without co-ordinating its concepts and visions with partner countries around the world. Such co-operation has already generated important achievements. This year, we can harvest – and will celebrate – two important results of our joint efforts: the two WIPO "Internet Treaties" WCT and WPPT. The WCT has come into force on 6 March, and the WPPT will follow suit on 20 May. Another coincidence with the 10th anniversary of the Fordham Conference? Far from it, I would submit. In the run-up to the Diplomatic Conference of 1996, where WCT and WPPT were eventually adopted, we discussed all issues at Fordham. Subsequent to the adoption of the Treaties, we discussed, again at Fordham, appropriate ways of interpreting their provisions. Finally, we continue – of course at Fordham – our discussions on the unfinished business of the 1996 Diplomatic Conference, namely audiovisual performances and databases, as well as on other international developments in WIPO, the WTO and elsewhere. My congratulations to Hugh Hansen in this context for the impeccable timing of the annual Fordham Conference: there seems to be some rule that WIPO’s Diplomatic Conferences on copyright issues take place in the weeks before Christmas – the decision to hook Fordham up to Easter was certainly a wise one from this perspective.

2. Perspectives for the Future

The Audiovisual Protocol

One of the elements of unfinished business at international level is the protection of audiovisual performances. No agreement could be reached in 1996 on this issue, nor was it possible during the Diplomatic Conference of December 2000 to update the Rome Convention with respect to audiovisual performances and to conclude a "WIPO Audiovisual Performances Treaty".

The future of this Treaty remains uncertain. During the regular session of the WIPO Assemblies in September 2001, the view prevailed that the time was still not ripe to resume negotiations on this new international instrument. When the Assemblies meet again in September of this year they will once again have to decide whether or not to reconvene the Diplomatic Conference in order to reach agreement on the outstanding issues. In view of the highly controversial issue of applicable law and of the prevailing differences in concept, there does not seem to be much reason for optimism. Nevertheless, the European Community and its Member States continue to be committed to the objectives of these negotiations.

The Protection of Broadcasters’ Rights

As I stated last year here at Fordham, the European Community and its Member States attach great importance to the update and improvement of the international protection of broadcasting organisations. In our view, a new international instrument is needed to update the Rome Convention of 1961 in this respect. In November 2001, the European Community and its Member States presented a proposal in treaty language for a new WIPO Treaty on the protection of broadcasting organisations at the WIPO Standing Committee on Copyright and Related Rights. The starting point of this proposal is the protection of broadcasters under the Rome Convention, but it also draws upon the WPPT, existing Community legislation (notably the Rental Rights Directive, the Cable and Satellite Directive, the Term Directive and the new Directive on Copyright in the Information Society), and other treaty language proposals, such as those from Argentina, Japan and Switzerland.

The discussion at the WIPO Standing Committee made it clear that several important issues still need to be explored further, such as the scope of the envisaged instrument, definitions, or Internet activities. Discussions will continue at the next WIPO Standing Committee from May 13 to 17, 2002 at which the WIPO Secretariat is expected to present a technical background paper dealing with certain issues that have been raised. This paper should shed more light in particularly on the scope of broadcasting, webcasting, and simulcasting. Hopefully other countries that are reflecting on the protection of broadcasters, such as the USA and Canada, may come forward with their treaty language proposals as well.

The Protection of Expressions of Folklore

The renewed activity, mainly at the impetus of developing countries, on the issue of the protection of expressions of folklore at an international level materialised in the creation of a WIPO Intergovernmental Committee for Genetic Resources, Traditional Knowledge and Folklore. The European Commission participated in the first of these meetings in May 2001 as an observer and at the second, in December 2001, as a non-voting member. The first meeting decided inter alia that the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, adopted in 1982, should be updated to take into account especially the new forms of commercial exploitation and that a questionnaire on national experiences with the above Model Provisions would be prepared and distributed to members.

The final deadline for answers to this questionnaire not having expired by the time of the second IG Committee meeting, the fifteen or so interventions remained fairly general. The European Commission, however, made a statement the general gist of which was to caution the delegations that trying to instore protection for expressions of folklore via intellectual property rules imperatively meant that one should look closely at the constraints and limits involved. We invited participants to concentrate on the defensive commercial interest and active commercial interest aspects of cultural communities and to answer some basic questions (to identify the rightholders, the object of protection, the scope of protection and the term of protection) which are a prerequisite to being able to move forward in trying to find a solution in the area of intellectual property.

The next meeting of this Committee, scheduled for June 2002, should benefit from a report from WIPO giving the results of the questionnaire and will no doubt provide a more practical and constructive atmosphere. We will actively contribute to the debate and might also share some more general reflections on the question as to where the line between intellectual property and the public domain should be drawn.

The Protection of Databases

The legal protection of databases is another element of unfinished international business. This issue would, in our view, certainly merit more attention at the international level. However, deblocking it obviously depends to some extent on legislative developments here in the USA. The protection of databases appears, once again, on the agenda of the next meeting of the WIPO Standing Committee in May 2002. It seems that the studies on the "economic impact of the protection of databases" at international level are being finalised in the WIPO Secretariat. We hope that these studies will contribute to a demystification of the issue and that they will serve to reactivate the debate.

Private International Law

The Information Society has a global impact in every sphere. It constitutes a worldwide challenge and calls, at least in certain fields, for worldwide solutions. Questions of private international law, i.e. the choice of forum, applicable law and enforcement of foreign judgements are especially relevant in this context.

During the "Fordham era of the last ten years", there have been significant developments in this field at EU level. In December 2000 the Council adopted a Regulation8 replacing the so-called Brussels I Convention. This Regulation establishes common standards on jurisdiction and on the enforcement of judgements in civil and commercial matters inside the European Union.

At the international level, however, attempts to agree a new multilateral convention on jurisdiction and enforcement of foreign judgements have so far failed. The latest one in a line of attempts took place in June 2001. It is regrettable that in an issue like this, where the European Union and the United States as the regions with the most developed Information Societies have so much at stake, the Conference could not agree on common ground.

Later this month, a new Session of the Hague Conference will decide on the continuation of the negotiations. Ten years of Fordham Conferences have paved the way for so many positive developments – it is hoped that the issue of private international law could also benefit from the constructive discussions here.

V. Conclusions

The Fordham Conference is, in my view, one of, if not the most important comprehensive international conferences on intellectual property. Over the last ten years, it has prepared, witnessed and commented on significant developments in the area of copyright on both sides of the Atlantic – developments, which have changed the legal and economic environment for good.

It is no coincidence that from 1994, i.e. 2 years after the first Fordham Conference, the European Commission began its own tradition of intellectual property conferences, which follow a similar pattern to Fordham. Indeed, there is no alternative option for discussing global issues in such an open and international framework.

Copyright, as I have said before, is an evolving scenario. We also count on Fordham to cope with the evolving challenges together in the future.