Copyright Harmony to Unite in Diversity

In the realm of intellectual property (IP), where patents protect inventions, trademarks guard brand identities, and copyrights secure original works, copyrights are especially challenged by digital advancements and generative AI applications.

According to Caterina Sganga, Comparative Private Law professor at Scuola Superiore Sant’Anna (Pisa) and coordinator of the reCreating Europe project, finding a happy fit between AI regulation and intellectual property rights is one of the greatest challenges ahead in innovation management. Sganga observes how AI is quite tricky to regulate because it requires a deep re-elaboration of the notion of creativity based on human expression. To foster innovation, a review of the current copyright regulation must not only consider AI-generated content but also strike a balance between recognising authorship in human-originated creativity and incentivising AI producers in advancing machine-based generative potentials. The latter also entails an assessment of the impact of text and data mining copyright exceptions on Europe's AI industry competitiveness.

The reCreating Europe project sought to rethink copyright law through the removal of regulatory uncertainty, paving the way to a culturally diverse, accessible, and creative Europe. The project’s three-year research has shown how AI is not the only undetermined area in copyright legislation. European countries face legal uncertainty regarding the use of derived creativity (online and offline), cross-border content use, and cultural heritage preservation. This is the legacy of a 'territorial’ approach to copyright that linked its regulation to national branding and domestic protectionism. In a digitally connected world, copyright laws should be modernised from a Pan-European perspective.

“Overcoming the current patchwork of norms and developing a fully harmonised copyright law across the EU, is paramount for Europe to be united in diversity”, Sganga considers. Although some aspects have already been harmonised through the introduction of mandatory rules to be implemented by all member states, Sganga believes copyright must be further raised to the European level: “This might expose copyright to higher lobbying pressures but will ultimately enjoy the benefits of cross-institutional balancing mechanisms and attention to freedom of expression”. The EC’s direct input, through the issuing of guidelines about the interpretation and handling of IP, would also be an asset to reach regulatory harmony.

Harmonisation must not translate into one-size-fits-all approaches. A blanket solution for IP regulation can be detrimental to the creative industry. Sganga recommends a two-level intervention, developing both a general IP code and sector-specific regulations, taking into account the diverse needs in copyright protection for sectors like literature and music. As positively exemplified by the co-regulatory approach shaping the AI Act, Sganga advocates for interdepartmental co-regulation and the involvement of all copyright stakeholders in the development of a unitary title for copyright, currently the only major IP right lacking uniformity across the EU.

Among reCreating Europe’s final outputs is a set of ‘digestible’ policy recommendations tailored to the multiple stakeholders concerned with copyright regulation, such as users/consumers, authors/performers, creative industries, GLAMs, and intermediaries.

Sganga suggests aligning copyright regulation with EU cultural policies and Open Science policies to account for their interplays in a holistic fashion. Compatibility with cultural policies implies adapting copyright law and its balancing tools to enable everyone to participate in their community's cultural life. This includes fostering cultural diversity by supporting niche cultural and creative expressions. From an Open Science perspective, copyright alignment would entail balancing exclusivity and access to scientific publications via, for example, the introduction of secondary publishing rights for authors and broader research exceptions.

Flexibility in copyright law is crucial for innovation, particularly in secondary creativity products not covered by existing exceptions which do not compete with original works and are often used freely in the US. Sganga highlights the importance of managing transformative uses of creative content to support democratic access to culture and participation in cultural life within an everyday digital environment.

Furthermore, broadening our understanding of diversity and inclusivity, especially for people with disabilities, is necessary to offer equal cultural access. Sganga notes recent improvements in copyright exceptions for disabilities but points out gaps, especially for cognitive and learning impairments.

Market power in the creative industry, and the dominance of platform-based distribution models, threaten content diversity. Increased centalisation on the distribution side, following profit markets and converging towards mainstream repertoires and forms of expression may disadvantage smaller creators through recommendation algorithms, limiting the variety of cultural and creative products. This reduction can negatively impact public debate, education and societal evolution through critical thinking. “Public discourse is based on cultural and creative products and how we critically engage with them”, warns Sganga. “A reduced selection of cultural products disempowers societies to evolve through critical thinking”.

To counter intellectual poverty, collective copyright management must fairly represent creators, ensuring fair compensation and rights negotiation. Part of this empowerment includes the provision of tools allowing individual artists and small producers to be the main beneficiaries of the value of their creations.

Additionally, Sganga emphasises the environmental impact of production innovation and consumption patterns, advocating for a flexible approach to copyright law that discourages multiplication by promoting transformative use, reuse, and re-creation of original works for environmental sustainability.

True to its name, ReCreating Europe advocates a multi-stakeholder re-negotiation of legislative frameworks to bring Europe under a unitary copyright title sufficiently flexible to safeguard content diversity and recognise sectorial specificity, yet rigid enough to make creative innovation accountable for sustainability.

This is an article from the Horizon Future Watch Newsletter (Issue 4, November 2023), presented by Foresight on Demand