The Copyright Aspects of the EU-Japan EPA

In a forthcoming paper of mine, I analysed the European Union’s four free trade agreements (whatever official names they actually have): the one concluded with Cariforum states, South-Korea, Canada and Japan. The EU-Japan EPA is the latest of these three. Let me – extremely – shortly summarize its content.

In my paper I argued that the historical development of the free trade agreements of the European Union indicate two main lessons: that the EU adaptive refines its agreements (to meet the challenges of the day, and to comply with its trading partner’s needs; even though the EU has concluded some agreements where the other party was in a weaker position); and that the agreements are asymmetric in their content (generally favouring the EU).

The EU-Japanese EPA shows a minor backtrack from the adaptive refining model. As Japan has joined the vast majority of the leading international copyright treaties and agreements, the EU-Japan economic partnership agreement includes only a handsome of substantive norms. Similarly, the law enforcement measures, procedures and remedies of the agreement are expressly “complementary” to those of the TRIPS Agreement.[1] These rules are similar to the Enforcement Directive, although rules are only selectively transplanted. The substantive norms are much more limited compared to the acquis communautaire. Only the rights holders, their economic rights, the term of protection, and the three-step test are included into the text.[2] Even these rules are limited in scope, especially related to the term of protection. Namely, performers are not granted a general 70 years term,[3] and the revival of copyrights is also expressly excluded.[4] Some soft law provisions are also included in the agreement, which actually reduce the obligations of the parties. Namely, parties agreed to “continue discussion” on the use of phonograms, to “exchange views and information” on the resale royalty right, and they “recognise[d] the importance” of, agreed “to promote” and “endeavour to facilitate” issues related to collective rights management.[5] In fact, all these information indicate that the the agreement is much less asymmetric in favour of the EU, especially as the EPA was concluded by two equally strong economic partners. In fact, copyright is only a tiny piece of the cake, a part of the “package deal”  of the parties. This is especially true since the most publicized information about this agreement were always the importation of dairy products (especially cheese) to Japan, and cars to Europe. Copyright is a necessary “must” of the deal, nothing else.

The EU-Japan EPA has finally entered into force on February 1, 2019.

[1] EU-Japan EPA, Article 14.40.1.

[2] Article 14.8-14.11, 14.13 and 14.14 respectively.

[3] Compare Article 14.13.2 to Article 3(1) of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version).

[4] Article 14.17.2.

[5] Article 14.12, 14.15 and 14.16 respectively.

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