Regulating Creativity Online: Proposal for an EU Copyright Institution

In 2019, the EU adopted a new copyright directive aiming to modernise the legal rules established in the 2001 InfoSoc Directive, as well as promote a better functioning ‘digital single market’ for the exploitation of creative works and other protected subject matter. However, after extensive negotiations and compromises reached at the legislative level, the ongoing implementation of the directive into national law seems to have deepened existing regulatory differences between Member States. The result of this (and past) failed attempts to approximate national copyright regimes have led to copyright being the least harmonised of all IP rights in the EU. Furthermore, legislative interventions so far have often attracted criticisms for not sufficiently taking account of public interest concerns and safeguarding fundamental rights in the offline and online world. Therefore, the time has come to consider another perspective on harmonisation: one which focuses on improving the existing institutional and regulatory arrangement for copyright in the EU by providing a new avenue for Member State cooperation in oversight, policy-building and enforcement. In recent years, particularly considering the many challenges of regulating conduct online, attention has been increasingly focussed on re-centralising certain regulatory tasks to public, independent EU level authorities. Given the growing number of cross-border enforcement issues in administering copyright in the online environment, an EU-level regulator may also be better placed to monitor the copyright-relevant activities of online platforms, centralise EU-wide dispute resolution, deliver policy advice on the future design of copyright legislation, and help coordinate Member State enforcement and regulatory practices. Such a public regulator would also likely be in a better position than private actors to guarantee a fair balance of interests and the respect of fundamental rights online, giving shape to what has recently been conceptualised as ‘digital constitutionalism’. If created, such an authority may, in the long term, help to ensure greater levels of transparency, predictability and certainty for EU copyright stakeholders participating in the online content marketplace. Centring on the premise that the established institutional and regulatory frameworks in the EU are no longer capable of promoting the goals of a modern, online copyright, this article explores a specific solution in detail: introducing a new, EU-level public regulator for copyright. Part I first evaluates the available room for manoeuvre in the existing regulatory and institutional framework for administering copyright law in the EU by examining recent trends and developments in EU institutional frameworks. The examples of the European Data Protection Board and the European Board for Digital Services in the DSA are analysed in order to identify parallels and draw inferences for a potential equivalent in the field of copyright. Part II then identifies several key aspects of the Copyright in the Digital Single Market Directive that leave important questions of regulatory design unanswered and proposes several available ‘institutional’ options to improve its implementation. The article concludes with recommendations.