unpredictability of the European public domain. As a consequence, users prerogatives will be variable and ambiguous, transaction costs will rise, and the efficiency of the European Internal Market will be lowered, therefore undermining A Digital Agenda for Europe’s goal of a “vibrant digital single market”.[1] The fundamental drivers of legal uncertainty are obscure laws and a lack of harmonisation.
Authors including Jessica Litman have argued that copyright laws are too obscure and complex for the users.[2] Copyright law is drafted for the market players, and its obscurity causes a high level of uncertainty among users regarding what they can or cannot do with creative content. Because of the complexity of copyright provisions, users are discouraged from enforcing privileged or fair uses of copyrighted content in court. The obscurity of copyright law has perpetuated and propelled its misuse and abuse by copyright conglomerates. The problem is exacerbated by the fact that users are involved far more than before in the creative process. Digitization, the Internet and user-generated culture have made everybody a potential author as well as a potential infringer.
The public domain suffers also from legal uncertainty that is the effect of lack of harmonisation among European national jurisdictions. Firstly, Europe’s diverse legal frameworks heighten the indeterminacy of that portion of the European structural public domain that may be termed the ontological public domain. The ontological public domain is defined by the application of the idea-expression dichotomy, the subject matters protected, the criteria for protection, either the requirement of originality or substantial investment, and the exhaustion doctrine. In Europe, subject matters of protection have been harmonised only with respect to new or controversial subject matters, such as software, databases and photographs.[3] The concept of originality is still largely unharmonised throughout Europe and fundamental differences between continental and common law systems still remain.
The diversity of the European legal framework also adds peculiar
complexity to the issue of copyright duration. Despite the fact that
- ↑ European Commission, A Digital Agenda for Europe, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM (2010) 245, Brussels (19 June 2010), available at http://ec.europa.eu/information_society/digital-agenda/documents/digital-agenda-communication-en.pdf, p. 7
- ↑ See Litman (2001) and Jessica Litman, “Real Copyright Reform”, Iowa Law Review, 96 (2010), 1-55.
- ↑ See Hugenholtz, et al. (2006), pp. 31—41.
