Option 4 would be achieved through a Regulation setting out common EU rules and replacing national legislation with a legal base of Article 118 TFEU. A single EU copyright title would be developed to replace national copyright titles. Under a unitary title, the exclusive rights would be defined as being protected in the whole territory of the EU.
In order for unitary title to be effective, there would need to be exhaustive harmonisation, and direct applicability, of the entire copyright framework. To that end, a European Copyright Code would be created. So far, harmonisation has focused principally on rights and exceptions (and even in that respect there are divergences).
This would mean that in order to ensure the effectiveness of a unitary title, all other elements in a “Copyright Code” would need to be harmonised fully this includes: all exclusive rights that are not fully harmonised, including the adaptation right, the definition of protected subject matter; the threshold of originality; authorship; ownership; moral rights; term of protection; exceptions and limitations; copyright contract law; enforcement law and practice. A European Copyright Code would thus replace all national legislation on copyright, and all national copyright titles. It is likely to imply the need to establish either special copyright courts at the national level or an EU-level copyright court.
Summary of impacts of Option 4
By virtue of establishing a single title and a European Copyright code, copyright could no longer be invoked to justify the segmentation of the internal market for the provision of content services. This implies the need to arbitrate a compromise between the droit d’auteur tradition and the Anglo-Saxon ‘copyright’ approaches. The removal of all territorial restrictions is likely to increase the price of licence fees, as authorisations (and services) would cover the entire EU. This is likely to favour larger companies with a cross-border network, over national network operators.
On the other hand, these impacts could be mitigated by the development of licencing practices based on the number of users targeted/actually served. In general transaction costs will be radically reduced (application of one single uniform set of rules through the EU). This will benefit all actors in the value chain and will lower entry barriers for new entrants. It will also improve legal certainty for all stakeholders.