Le droit d’auteur européen en transition numérique
Over the course of this book, the lawyer Alain Strowel presents us with a fascinating history of copyright, enriched with many examples of case-law from the Court of Justice of the European Union, the European Court of Human Rights and the national courts of various states. With his outstanding writing skills, Strowel, a lecturer at the University Saint-Louis and UCLouvain, pulls off the rare feat of proving that law books do not need to be unreadable.
Copyright came about two centuries ago, firstly in England, with the Statute of Anne of 1709, then in the United States, in the form of the first federal law of 1790, followed by France, where a succession of royal decrees were passed in 1777, followed by a raft of their revolutionary counterparts between 1791 and 1793, the author explains, adding that “the birth of copyright would never have been possible before ownership and authorship came to be placed at the pinnacle of ideas. The spread, in the 18th century, of the concept of two different versions of man, the man as owner or the man as author, is one of the symbolic precursors [of this]” (our translation throughout).
Copyright, the “cardinal institution of the world of culture and creativity (…), has still to complete its digital transition”, Strowel notes, observing that “since the Internet erupted in the mid-1990s, copyright has come under pressure from the innumerable digital developments, content platforms, artificial intelligence and mass data”.
Copyright is also far more than just a complex legal scaffold: “it is a fine object of reflection for all those interested in the field of creation, disruptions to ancient commercial models from new technologies, the challenges of digital platforms, demands for access culture, but also the demands of artists to receive fair remuneration and appropriate recognition, to criticism based on the right of the freedom of expression and the right to information … Copyright has a tendency to crystallise these various forces and directions of thrust (often in different directions) around it. An exclusive right, the outlines of which have been defined by developments in legislation and case-law, it is also – and especially – deployed in the manner of an institution determining the taking of decisions and risks on cultural markets, but also in the technological sector. At the same time, it flows more than ever from technological developments, whether in the form of artificial intelligence tools, data-sharing, decentralised systems such as blockchains. It is also an instrument which structures the balance of power between creators, publishers, distributors, innovators and consumers of cultural products at a time when the economy and society are continuing their digital transformation”, writes the author, in effectively a summary of 30 years of research, but also of the themes and tensions unfolded in the book.
Strowel, a “committed European” in his own words, argues that “copyright must (…) go beyond national parameters and become a truly European right”. One of the clear advantages of a unitary copyright title would be the possibility of securing cross-border injunctions covering the whole of the EU in the event of copyright breaches. Strowel goes on to make a case for the creation, in the fullness of time, of an EU copyright instrument. In practice, it would be helpful, initially, to codify existing law on the basis of the relevant provisions of directives, Court of Justice case-law and interpretative rules. This new copyright code, which would be non-binding in nature, would be a “valuable first step towards greater European integration”. In a second step, the European Commission could propose a regulation establishing a unitary title, which could be optional, along the lines of the Council Regulation of 2002 on community designs. Such a regulation would make it possible for the two systems to coexist, by defining a unitary regime applicable to unregistered copyright (the unregistered community design or model) on top of (registered) national rights to designs and models. Utopia, or a legitimate area of reflection for the forthcoming legislative period? (Olivier Jehin)
Alain Strowel. Le droit d’auteur européen en transition numérique (available in French only) Larcier. ISBN: 978_2_8079-3310-1. 393 pages. €97,00
Les monnaies numériques et les cryptoactifs
In its latest edition, the review of the association Europe Finances Régulations sets out to delve into the nebulous topic of digital and crypto currencies.
Its contributions include a thought-provoking article by Aurore Lalucq, a member of the European Parliament (S&D, France), stressing that “although crypto-currencies are often hailed as an innovative solution to respond to the shortcomings of the banking and financial systems, they have failed to keep this promise” (our translation throughout). In reality, there is every reason to question their very purpose: “they do not play the role of currency, because of their volatility, and do not represent a new class of assets completely separate from other financial markets, as they collapse as soon as interest rates rose”. Even worse, the development of the crypto-currencies sector has been marked over eight years by countless scams and bankruptcies. Lalucq criticises the art of the protective nature of the PACTE law in France, which requires no more than the registration of providers of digital currency services. And although the MICA introduces useful provisions, there are still plenty of gaps that need plugging.
Nicolas de Sèze (University Paris 1 Panthéon Sorbonne) stresses the huge diversity in approaches to central-bank digital currency (CBDC) between one country and the next. For instance, the Chinese digital yuan project was launched in 2014 and put together as a digital version of the currency issued by the central bank (PBoC), with many features in common with fiduciary currency: legal tender, finality (allowing it to be reused immediately by the recipient), non-payment, absence of fees. The PBoC reports that by the end of August 2022, 360 million transactions had been concluded in digital yuan, representing a total value of 100 billion yuan (14 billion euros), and that payments were received by 5.6 million traders. Other central banks (France, Sweden, Japan) have launched various forms of experimentation. In the camp of the less enthusiastic, some are thinking about it (Switzerland, ECB) or still reluctant (Canada, the United Kingdom, the United States).
In her article on CBDC and stablecoins, Isabelle Martz (Groupe Société Générale) provides an analysis from the point of view of a bank, both as economic agents bearing witness to changes underway, in relation to its clients and as a possible actor in certain transformations. “The world of blockchains is risky and difficult for the uninitiated to access: it requires a certain level of technological and financial knowledge. It is also a world that is still fragmented, as there is still very little interoperability, both between the various blockchains and with the traditional environments”, the author observes, going on to add that the “field of securities and financial markets looks highly promising, as blockchain technology should have the effect of facilitating the complete life-cycle management process: issuance of ‘tokenised’ securities, receipt and transmission of orders, settlement upon delivery and management of assets (conservation, accounting, taxation), in particular with the automation of processing via smart contracts, such as payment of coupons or dividends”. “Thanks to the concept of the blockchain, its processes could be transacted less intermediately, more quickly, continuously (24/7) and more cheaply”, she adds, pointing out that according to some estimates, the size of the global market for “tokenised” assets (not including crypto-currencies) could reach a level of at least 16,000 billion dollars by 2030. Martz goes on to argue that a “stablecoin, ideally at European level, would have many advantages: it would be accepted by all clients of banks, it would safeguard liquidity and optimise interoperability with other payment solutions, it would define rules to protect clients from fraud and litigation at the same level as traditional solutions, it would spread the load of costs incurred in the construction of the solution and associated services (such as – for instance – a connection with a digital identity solution)”.
“Although blockchains look revolutionary, they will, like the Internet before it, take years to develop all their capacities”, writes Martz, adding that “it is a world under construction, in which a priority must be to start by thinking of the social value added by what is currently being built”. This is unquestionably the right priority, but what “social value” can there be in speeding up financial transactions?
The author concludes by stating that “investing in finance via blockchain is investing in what is the backbone of a new economy under construction. In this universe, the banks will be legitimate and useful, as regulated and trusted third parties, capable of assisting their clients to understand what is at stake, of streamlining and securing access to this new economy, of supplying a bridge between the traditional world and the new digital world and of creating interoperability. Given the uncertainties, and even though we may feel that we have time on our side, a pragmatic and experimental approach is the best way for economic actors to gain in knowledge and understand the new challenges in order to seize opportunities and remain in the game. Because, given what is at stake, socially, economically and politically, we cannot afford to allow this universe to be developed by others”. And this is in fact where the social value lies, seen from the point of view of the bank: to remain full players in a world of finance in flux and to take every opportunity to make more profits. (OJ)
Sylvain de Forges (edited by). Les monnaies numériques et les cryptoactifs (available in French only) Revue d’économie financière. No.149, first quarter 2023. ISBN: 978-2-3764-7081-6. 322 pages. €35,00
Les populismes européens
“The current populist moment inhabits (…) a context of unprecedented poly-crisis, which has been developing since 2022 with the cumulative effects of the Covid-19 pandemic followed by the outbreak of the Russian offensive in Ukraine at the end of February 2022, on top of the turbulence still hanging over from the financial crisis of 2008”, writes Gilles Ivaldi, an academic researcher at Sciences Po Paris, in this article, published in the review Futuribles. “In this context”, the author goes on to argue, “populists of all stripes have experienced varying fortunes, to the point at which a number of observers believed that they could detect precursory signs of a possible ‘end of populism’. In reality, what we have seen is what we might call a hybrid populist cycle, resulting from the coexistence within a single space of political campaigning by two contrary forces, swelled by concerns and insecurities created by the poly-crisis: the first consists of what is commonly known as the ‘rally round the flag’ effect, which is conducive to the stabilising of traditional political allegiances and bolstering support for the major government parties; the second, which is more polarising and more of a fertile ground for the expression of protest votes in favour of anti-establishment forces, first and foremost populist movements”.
Ivaldi points out that during the public health crisis, in February 2021, wave 12 of CEVIPOF’s political trust barometer showed a strong uptick in satisfaction with the functioning of democracy in France (+7 points), Germany (+12 points) and the United Kingdom (+7 points). Trust in the government had leapt by 8 points in France and as many as 12 in Germany. “During the pandemic, the strong comeback made by political voluntarism and State intervention (…) has, at least initially, been able to act as an antidote to populism”, the author writes, before going on to argue that on the contrary, the recent elections held in various places in Europe stand as testimony to the “rude health enjoyed by the populist parties”: in the second round of the French presidential elections, Emmanuel Macron’s rival, Marine Le Pen won a record 41.5% of the votes; in Italy, Giorgia Meloni won the elections of September 2022 with 26% of votes cast; in Sweden, the Swedish Democrats clawed their way into second place in the general elections, held the same month, winning 20.5% of the vote; in Hungary, the Fidesz gained 54% of the vote in the general elections of April 2022. Elsewhere, in Austria, Finland and the Netherlands, “right-wing populists are on the up” and in Poland, the PiS “is still very much the front runner, with 36% of voting intentions”.
The most recent wave of the political trust barometer, conducted in February 2023 in France, Germany, Italy and the United Kingdom, shows a considerable downwards tendency: “in France, trust in the Assemblée nationale dropped 10 points over the period, to 28%; in Germany, the corresponding drop is 12 points for the Bundestag (46% trust) and in the UK, 14 points for the House of Commons (27%). In Italy, 27% of respondents stated that they had faith in the newly elected Chamber of Deputies voted into power in September 2022”.
Levels of satisfaction with the functioning of democracy remains highest in Germany (60%) and the United Kingdom (47%), notwithstanding drops of 7 and 14 points respectively in the same countries since February 2021. It remains lower in Italy (41%) and even more so in France, where just 35% of respondents feel that democracy is in good shape, which is perhaps not surprising in the context of pensions reform having been pushed through by force.
“The latest wave of the political trust barometer attests to the fact that attitudes of national self-interests and concerns over immigration persist, and to an increased appetite for authority, reflecting the political offering (of the far right). Some 60% of citizens interviewed in France, Germany, Italy and the United Kingdom believe that ‘there are too many immigrants’ and their country ‘needs a good dose of law and order’; between 35 and 50% of respondents are of the opinion that their country needs to protect itself from the world more; a little over one third of those questioned also subscribe to the idea of a ‘strong man who does not need to concern himself with the Parliament or elections’”, Ivaldi reports, going on to stress that of all the populist right-wing leaders, Giorgia Meloni has the most positive image in terms of sincerity, empathy, competence and political voluntarism. By way of conclusion, he argues that “the political cycle we are going into could therefore mark a new stage in this slow process of democratic erosion which will, no doubt, be bolstered in the future by further populist successes”. This is particular cause for concern in the run-up to the forthcoming elections to the European Parliament! (OJ)
Gilles Ivaldi. Les populismes européens – Poussée de la droite radicale et fin du moment hybride (available in French only). Futuribles no. 454, May-June 2023. ISBN: 978-2-8438-7469-7. 128 pages. €22,00