characterized as a fine example of contracting into liability.[1] Individual property rights are pooled into a collecting society, which converts the full property right over the individual work into a pro-rata share of the claim to global compensation agreed in advance with users. What is required in the digital age is that would-be users are not required to go around, hat in hand, to all the twenty-seven EU CRMOs to get from each of them clearance for the service; and that cross-border pan European licensing takes off. The Digital Agenda is rightly looking into this as well.[2]
Third, public sector information is an essential input for the emergence of the third paradigm of innovation I just sketched out. Maps, geo-data, environmental data-sets, laws, regulations, case law and the like may be brought together across jurisdictions through digital networks and contribute to the emergence of new aggregated information products and services at a pan-European level. The current text of Directive 98/2003 still needs several upgrades to contribute to the goal; its revision is one more of the focal points of the Digital Agenda.[3]
If we combine the three “action plans”, we can see that, while certainly they do not amount—and do not intend to amount—to a roadmap to Berne 2.0, they bring together three components which are vital to reconciling IP and the new digital environment. CRMOs are called to overcome their national limitations to operate cross-border along the routes opened up by digital technology. Orphan works are seen as a possible area for a more flexible statutory license regime, unless their holders show up and opt out of it. The enormous wealth of data sets generated by public sector bodies engaged in their primary function is increasingly made available to the pioneers of the third innovation paradigm.
Whether these test beds of legislative innovation are to take off in actual legislative innovation and coalesce into a normative environment which brings us closer to a reconciliation of copyright law and the digital environment, we do not know yet. I surely hope so.
- ↑ Robert P. Merges, “Contracting Into Liability Rules: Intellectual Property Rights and Collective Rights Organisations”, California Law Review, 84 (1996), 1293–393.
- ↑ A Digital Agenda for Europe, pp. 7–8.
- ↑ Ibid., pp. 9–10. The specific copyright issue in the PSI Directive is whether the rules concerning government IP right may help or hinder the process, as illustrated in detail by Estelle Derclaye, “Does the Directive on the Re-use of Public Sector Information Affect the State’s Database Sui Generis Right?”, in Knowledge Rights: Legal, Societal and Related Technological Aspects ed. by J. Gaster, E. Schweighofer and P. Sint (Austrian Computer Society, 2008), pp. 137–69.
