THE LONG TRIP FROM BERNE TO BREXIT: An evolutionary case for copyright harmonisation in the European Union

There is considerable interest in reforming copyright law within the European Union. Critical analysis in this thesis in Chapters 3-6 highlights gaps in EU copyright harmonisation in key areas: originality standards, notions of a work, fixation, moral rights, permitted exceptions and works in the digital single market. Despite current attempts at harmonisation, there has not been a satisfactory proposal to harmonise EU copyright law; nor have these differences been explored sufficiently, both in breadth and depth, to form such proposal. This research investigates the viability of implementing an EU-wide unitary Copyright Regulation, encompassed within a single document. The core central question is whether or not an EU copyright legislative instrument is feasible. A secondary consideration is, if so, whether the proposed EU Copyright Regulation could, and should, annex to the new EU-UK Trade and Cooperation Agreement to supplement EU-UK copyright trading relations. The thesis is evaluated in the context of the EU’s legislative powers, predominantly TFEU, Arts. 114 and 118, but with particular respect paid to Arts. 4 and 5 in terms of subsidiarity and proportionality. All proposed reforms must satisfy these legislative provisions. Chapter 2 focuses on historical considerations and will reveal that the Commission prioritised the harmonisation of industrial property, without consideration of copyright, which will be shown to have been erroneous. The author’s research centres predominantly on using the Draft Wittem European Copyright Code (2010) as a theoretical framework for two points: critical analysis of selected issues of copyright and as an architectural structure for drafting the posited EU Copyright Regulation. Critical analysis in Chapters 4 and 5 will reveal that a Copyright Regulation is possible. Moreover, the research will reveal that the CJEU has been instrumental in bringing about this possibility through its creative interpretation of EU directives, regulations, EU treaties and international treaties. Moreover, evaluation of the Trade and Cooperation Agreement in Chapter 6 will reveal that, whilst there are still differences between EU and UK copyright laws, it is possible to annex the proposed Regulation to the Agreement to better support trading relations in copyright works. The thesis will show that it should annex to the Agreement for improved trading relations. Reforms are recommended in Chapter 7 to continue harmonisation in areas as yet, unharmonised. Moreover, reforms will also seek to strengthen protection in current directives/regulations that have already been passed to harmonise certain areas of copyright law but which, over the passage of time, could be improved. A draft skeleton of the proposed EU Copyright Regulations is appended to this thesis (Appendix A)