European Copyright Inside or Outside the European Union: Pluralism of Copyright Laws and the “Herderian Paradox”

The agenda of the EU includes the harmonisation or unification of laws of its Member States for promoting the common market, improving free movement of goods, free movement of capital, free movement of services, and free movement of people. This also applies to copyright law. However, harmonisation or unification of laws through legislation or CJEU decisions does not necessarily further European integration. In the light of recent political and social events, a movement towards further harmonisation, also in copyright law, could even be detrimental to the European cause. This article argues that the more one pursues integration, harmonisation and unification of national laws across Europe, the more one may endanger the fabric and framework of a union of European states. Further legal unification prompts a tendency of the EU Member States to move away from one another. Increased unity causes further diversity, and a certain level of diversity effects unity. This dialectical process can be called the “Herderian paradox”, inspired by the philosophical history of Johann Gottfried Herder (1744–1803) which is outlined in this article. Some of the problematic areas of copyright harmonisation that illustrate the dangers of the “Herderian paradox” are discussed: the concept of copyright work, the interpretation of originality, the role of moral rights, exceptions and limitations, and, as a possible but dangerous remedy to overcome difficulties of harmonisation, EU law pre-emption and intergovernmental treaties outside EU law. © 2016, Max Planck Institute for Innovation and Competition, Munich.