ABSTRACT
Since the beginning of the Berne Convention negotiations, numerous countries have sought to ensure copyright harmonization in addition to the protection of foreign authors. The objective of these efforts has been to guarantee that authors, independently of their national origin, receive protection from unauthorized copying in foreign jurisdictions, which was a common practice at that time.
The European Union’s recent uptick in efforts to regulate the digital market, such as with the passing of the Directive on Copyright in the Digital Single Market, has drawn criticism that the resulting redistribution of rent from certain US tech companies to European copyright holders and de facto harmonization of copyright laws would be antithetical to US interests. Thus, the critics’ response would be that the United States should abandon copyright harmonization generally.
This paper addresses the major flaws of taking an isolationist position on copyright harmonization while focusing specifically on the impact of news aggregators, such as Google News, on the journalism industry and the relationship between other Internet Service Providers (ISPs), such as YouTube, and copyright holders. The 2019 EU Copyright Directive imposes no harmonization obligation on World Trade Organization (WTO) countries in these fields. As a result, any regulatory lock-in stemming from de facto harmonization of copyright law could be resolved by negotiating a ‘harmonizing down’ approach to allot more room to the interests of news aggregators and other ISPs. Furthermore, the necessary result of the Berne Convention’s principle of national treatment is that the beneficiaries of the 2019 EU Copyright Directive would be copyright holders from all the WTO countries, not just European copyright holders. Thus, the 2019 EU Copyright Directive does not rearrange competing interests between the European Union and United States; rather, it rearranges competing interests between tech companies and copyright owners generally.
The objective of this paper is not to defend the merits of this highly contested European Directive, but rather to clarify assessments that have been made in connection with its issuance. Specifically, I want to emphasize the importance of not using this Directive to undermine years of harmonization efforts in copyright law.
Fusco, Stefania, The Enduring Value Of Copyright Harmonization (March 15, 2024), 70 Villanova Law Review 679 (2025).
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