Dispelling myths about EU law

What are the most common myths surrounding the laws of the European Union? We asked two experts, Phil Syrpis and Catherine Seville, to describe and combat some misconceptions. From the Maastricht Treaty to intellectual property law, here are some of the topics they addressed.

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The popular distinction between a narrow economic vision for the European Union, and one which also include a social and political dimension, is not one which can be sustained.

There are many involved in the debate on the relationship between the United Kingdom and the European Union, who claim to be happy with the idea of the United Kingdom being part of the common (or internal) market, but not the broader Union. They typically want the United Kingdom to be able realise the economic benefits of EU membership, without being saddled with social and political costs. There is some merit to this position; since the coming into force of the Maastricht Treaty in 1992, it has become clear that the European Union’s influence stretches beyond the common (or internal) market, and that the European Union can intervene in a range of areas without the need to link its action to the market making endeavor. Many of these areas are contentious—for example the European Union’s role in relation to defence policy.

But what I want to say here, is that many of the most controversial areas of EU action lie squarely within the market arena, which necessarily involves all manner of social and political choices. It is, for example, within the ‘core’ internal market provisions of the Treaty, the accompanying EU level legislation, and the case law of the Court of Justice, that the battle between the free movement rights of service providers and the fundamental right of trade unions to take action to protect the interests of workers is played out; and in which the rights of migrant workers, family members, job seekers and other EU citizens to claim residence rights and social security entitlements are defined. The key point is that the creation and governance of the common (or internal) market inevitably involves the making of a whole host of controversial social and political choices.

—Phil Syrpis, University of Bristol Law School

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I would like to dispel the misconception that the European Union is all about the free movement of physical goods and people. The Digital Single Market is transforming the European Union, and Intellectual Property has a big role to play in that.

The details of the emergence and development of Intellectual Property law in Western Europe are fascinating, and of course IP law has changed very significantly since medieval and pre-modern times. But one striking thing about the view from a distance is that the underlying questions and problems which preoccupied people in the past, have fundamental similarities to those which we are wrestling with today. What should we be protecting? Should hard economic considerations of trade, competition and profit trump niceties such as rewarding and protecting individual inventors and authors? What kind of interest does the general public have in all this? Who should be in charge—a state/government body or an industry/guild body? How do we encourage future creators whilst still protecting the current ones? How much protection is enough protection, and when does is it become too much? Is a regionally harmonized system definitely better than a collection of national systems?

The international questions were huge then and are huge now. Traders are quick to see both the opportunities and challenges of geography in a shrinking world. People want to sell and protect their products beyond their own local market. Treaties to allow cooperation between states soon developed, as international trade became easier and safer. At the moment a new EU initiative, the Unitary Patent is causing much controversy and anxiety. The hope of its promoters is that it will become the preferred option for those patenting in Europe, supplanting the current ‘bundles’ of national patents. But it is hugely ambitious project, with many practical details still to be agreed. It remains to be seen whether it will be a triumph for the EU visionaries, or a victory for the nay-sayers.

There are also big issues in the world of copyright. People love the access that they now have to copyright works—particularly via many tempting routes on the internet. People ask, why should I pay so much for a download when it costs you next-to-nothing to send it to me? From this has flowed the popularity of peer-to-peer sites (illegal and legal), from early sites such as Napster, Kazaa, Grokster and The Pirate Bay onwards.

Technology allows users not just access, but the possibility of interaction with a work. The Hargreaves Report on Digital Opportunity argued (successfully) for a parody exception to UK copyright law, noting that video parody was an everyday activity for many private citizens. An example of homemade parody – Newport State of Mind (based upon the Jay-Z and Alicia Keys song, Empire State of Mind) achieved great success on YouTube in 2010 but resulted in action by EMI to have it removed. So when Cassetteboy’s David Cameron mashup went viral recently, the duo spoke about the change in the law as legitimising what they do. Within the EU these issues are just as live, and the question of whether copyright in the Digital Single Market needs reform is currently being debated in the EU institutions. The strength of feeling can be seen in the fact that a campaign called Copywrong has been started, arguing that copyright’s ‘copywrongs’ should be fixed.

But it is easy to over-simplify these difficult questions, and to generalize about IP on the basis on a couple of uncharacteristic headline examples. This is why it’s important to look back, to see how previous communities have regarded and dealt with these issues—and then make up our own minds about what to do about what we face now.

—Catherine Seville, Newnham College, Cambridge

Alice Leigh via Pictochart – Statistics from OHIM Report

Image Credit: EU Flags by Jean-Etienne Minh-Duy Poirrier. CC BY SA 2.0 via Flickr.