Curbing Copyright Protection on EU’S Moral Grounds
Moral rights were enumerated in the Berne Convention of 1928, which has since been signed by most nations, including the United States. Countries such as France and Mexico protect moral rights long after a copyright has expired and is submerged in the pool of public domain. Copyright protections safeguarded by moral rights are governed by international treaty. Attempts at harmonizing copyright laws with moral rights involve a delicate balance. Those seeking copyright protection in adherence with public morality face frustrating uncertainty and a potential cascade of lawsuits.
EU Copyright and Related Rights Law unlike EU Patent and Trademark Law fails to prohibit the protection of any work which prima facie contradicts public morality. Actually, under the European copyright and related rights legislation, no exclusion from protection of subject matter on public policy or morality grounds exists. Albeit, EU single market principles preclude protection of any subversive moral subjects and prohibit their commercialization lest the principles of the subjects be considered contrary to accepted norms of public morality. Even Europe’s European Patent Convention (Article 53(a))1 expressly excludes from protection any “invention the commercial exploitation of which would be contrary to public order or morality.” For example, the biological technology deemed to fall under this category is considered “un-patentable,” in compliance with EU Legislation governing the patenting of biotechnology.2 In 1998, the EU harmonized the patent law in member countries to biotechnological inventions, clarifying which inventions are patentable or lack patentability based on ethical grounds—providing a legal certainty to innovators seeking investments for their newly chartered patents. The same provisions of copyright exclusion based on morality principles exist in European Trademark Law. “Trademarks which are contrary to public policy or to accepted principles of morality” are prohibited by article 7(f) of the EU Trade Mark Regulation.3 These provisions of the EU Trademarks Directive4 prohibit EU Member States from registering morally explosive trademarks domestically. Taking into consideration CJEU decisions in this domain;5 the scientific criticism proffered by the CJEU’s interpretation of patent law morality and public policy exclusion in particular6 presents a certain absurdity mirrored in the recent pronouncements regarding the criteria which constitutes public morality in France,7 for instance.
The European law of copyright and related rights protection is based on five international acts: the Berne Convention for the Protection of Literary and Artistic Property;8 the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations;9 the TRIPS Agreement;10 and the WIPO Copyright and Performances and Phonograms Treaties.11 EU Law in this domain is consistent with the requirements of international instruments set in the field of IP. On the one hand, the recognition of a general exclusion of subject matter from protection on public morality grounds by the EU and its Member States would be inconsistent with the requirement of those instruments to protect copyrights of literary and artistic works and by related rights protecting expressive subject matter. It does not follow, though, from this inconsistency of the public morality criteria implementing international copyright tools, that such an exclusion would be contrary to or even consistent with EU Law. The fact is that international legislation does not apply directly to the EU, thus regulation must be implemented in a way which is compatible with EU Treaties and EU principles.12 The public morality exclusion principle of copyright protection, incompatible with international legislation, should at least be in compliance with the EU Charter.
The exclusion from copyright and related rights protection of subject matter on morality and public policy grounds is supported by the importance of EU IP Law, serving to ensure that IP rights are defined and applied in a manner consistent with EU fundamental rights. For example, recitals of the Information Society Directive define that such a Directive serves not only to reward and promote the production and dissemination of expressive subject matter and to protect the independence and dignity of authors and performers, but also to secure ‘compliance with the fundamental principles of law’.13 There is no doubt that fundamental rights—and via those rights, public morality policy—receive protection from the exceptions and limitations to copyright and related rights infringement for which EU Law currently provides.14 Such limitations exist to protect the freedom of third parties to use works for public interest purposes, such as research, storing, teaching and reporting the news, access by disabled people, public security, and humor (parody).15 These limitations exist to support the rights and interests of third parties to use protected works, not to deny the use itself. It may be worth justifying protective copyright exclusion under existing EU Legislation since the policy sturdily governs European patent and trade mark law. More importantly, if such comparable exclusionary laws would mimic the wording which guides patent and trademark legislation, all members of the EU could be in alignment with acquis communautaire. The exclusion of the subject matter from protection will in effect be compatible with EU fundamental rights16 and Member States will carry an obligation to prohibit from protection on public morality grounds, any works that represent ‘a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of [European] society.’17 In essence, incorporating the principles of exclusion of copyright protection to EU Legislation on the ground of immorality may clear the path for cohesive, effective EU Copyright policy and do away with evil practices within the EU.
Convention on the Grant of European Patents (opened for signature 5 October 1973, entered into force 1 January 1977) 1065 UNTS 199, as amended.↩
Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions  OJ L 213/13 (Biotech Directive) art 6(1), 6(2).↩
Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark, as amended by Regulation (EU) 2015/2424  OJ L 341/21.↩
Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks  OJ L 336/1 (TM Directive) article 4(f).↩
In the fields of trade mark, copyright and patent law respectively, L’Oreal SA v Bellure NV  EWCA Civ 53, Case C-487/07.↩
A Plomer, ‘After Brustle: EU Accession to the ECHR and the Future of European Patent Law’ (2012) 2 Queen Mary Journal, 110. ↩
Recent ban by 15 French mayoral decrees on sporting the burkini (‘beachwear which ostentatiously displays religious affiliation’) on local beaches for reasons of hygiene, public order and the protection of French constitutional values of secularism, reportedly enforced on at least one occasion by requiring a burkini-clad woman visiting the beach to undress so as not to offend other beach-goers and cause public disorder. See B. Quinn, ‘French police make woman remove clothing on Nice beach following burkini ban’ The Guardian, London, August 24, 2016. https://www.theguardian.com/world/2016/aug/24/french-police-make-woman-remove-burkini-on-nice-beach [http://perma.cc/CED6-BY9V]. According to French Prime Minister Manuel Valls, defending the ban; the burkini is also immoral due to its representation of ‘the enslavement of women’: A Chrisafis, ‘Burkini row: Nicolas Sarkozy calls for nationwide ban’ The Guardian, London, August 24, 2016. https://www.theguardian.com/world/2016/aug/26/burkini-row-nicolas-sarkozy-calls-for-nationwide-ban [http://perma.cc/5PRE-9NUM]. France’s state council (administrative court) suspended the ban following objections by human rights organizations pending a definitive ruling.↩
Berne Convention for the Protection of Literary and Artistic Works (adopted 9 September 1886, revised 24 July 1971) (Berne Convention).↩
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting (signed and entered into force 26 October 1961) (Rome Convention).↩
Agreement on Trade-Related Aspects of Intellectual Property Rights (signed 15 December 1993, entered into force 1 January 1995) (TRIPS).↩
WIPO Copyright Treaty (signed 20 December 1996, entered into force 6 March 2002); WIPO Performances and Phonograms Treaty (signed 20 December 1996, entered into force 20 May 2002).↩
Joined Cases C-402/05 P and C-415/05 P Kadi v Council of the European Union  ECR I-06351 (Grand Chamber) -.↩
Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society  OJ L 167/10 (Information Society Directive) recital 3.↩
Information Society Directive, art 5.↩
Id. See also Pila & Torremans (n 64) para 13.3.2.↩
Case C–260/89 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas  ECR I–2925.↩
Case C–41/74 Van Dyn  2 ECR 1351, 1350.↩