Is the Adaptation Right Harmonized Within the EU?
The International and European Copyright Law class is coming to an end with one more session remaining on the topic of exceptions and limitations, which is perhaps the most debated one given some of the recent judgments of the Court of Justice of the EU. During the most recent class on economic rights, however, an interesting question has been raised in relation to the adaptation right. More specifically, can the adaptation right be considered to be harmonized (at least implicitly) by the Copyright Directive? In addition, in countries that treat the adaptation right separately from reproduction right, would the Copyright Directive allow the introduction of a new exception with regard to, say, user-generated content?
The cat exception, as prof. Hugenholtz called it in reference to the prevalence of cat videos on YouTube, would only legalize what is effectively happening anyway. Users modify existing copyright-protected works and transform them into new, derivative works. Of course, before an adaptation is made, the rights of the author of the existing work have to be cleared out, but could such a requirement be considered a “barrier to innovation”? Does the requirement prevent valuable new works from being disseminated?1 Notwithstanding the fact that the hypothetical cat exception would operate merely within the merits of the content created by consumers, it would be prone to considerable interference with the economic rights of the original author.
In relation to computer programs and databases, the conclusion could be made that the right of adaptation has been harmonized (at least in relation to those categories of works), but could such conclusion be also made in respect of a wider variety of works? The Copyright Directive implements the WIPO Copyright Treaty, which in turn requires compliance with the Berne Convention. The Berne Convention treats adaptation right and reproduction right separately, but not all member states follow such categorization. Undoubtedly, by expressly referring in his question to countries that treat the adaptation right and the right of reproduction separately, prof. Hugenholtz must not have had two countries in mind, France and the Netherlands (the latter possibly inspired by the former). For example, in the Netherlands, the adaptation right is part of the right of reproduction, what could mean that since reproduction is harmonized, Netherlands would not be able to introduce any new exceptions under the adaptation right. However, should the Copyright Directive be interpreted as not harmonizing the adaptation right, would the different treatment even be conclusive to the possibility of introducing a new copyright exception?
If the practical differences between a reproduction and an adaptation are sometimes so negligible, why would the European Commission decide not to harmonize both the adaptation right and the right of reproduction? In most probability, the Commission considered the adaptation right to interfere too much with moral rights of authors and did not consider those to have an impact on an economic sphere or generally within the internal market.
By looking at the individual provisions and recitals of the Copyright Directive, the conclusion could be made that the adaption right has been harmonized (although perhaps in disguise). For example, Article 2 concerning the right of reproduction makes reference to reproductions made “by any means and in any form, in whole or in part”. The language is mildly suggestive of that fact that the Commission might have been aware of the ambiguities inherent in determining whether a work is an adaptation or whether a plain reproduction. Furthermore, recital 21 of the Directive stipulates that it “should define the scope of the acts covered by the reproduction right” and that “a broad definition of these acts is needed to ensure legal certainty within the internal market”. In light of these circumstances, Eleonora Rosati2 argues that the theoretical option to introduce a new exception should be interpreted narrowly. In other words, since the difference between an adapted work and a copied work is sometimes unclear, the cat exception should not cover transformative works, but only proper adaptations.
Recently leaked Impact Assessment of the Commission on the modernisation of the EU copyright acquis provides that “the broad manner in which the reproduction right in Article 2 of [the] Directive is formulated and the CJEU’s jurisprudence on the scope of the reproduction right […] seem to cover adaptations which give rise to a further reproduction within the meaning of Article 2”. The Commission also makes reference to the Allposters case expecting further guidance on the scope of Article 2.