A European proposal for the modernisation and harmonisation of copyright law
On 9 December, 2015, the EU Commission revealed its expected plans for the modernisation of copyright law.
According to the Commission, the goal is to adapt copyright law to technological challenges making it more European and digital-friendly, in order to “overcome fragmentation and fric- tions within a functioning single market”, ensure wider access to content across the EU adapt- ing exceptions to digital and cross-border environments, achieve a well-functioning market- place for copyright, and provide an effective and balanced enforcement system.
In particular, the strategy discussed by the Commission focuses on three topics, already indi- cated in the well-known Digital Single Market Communication, dated May 6th, 2015: (i) con- tent portability across borders; (ii) copyright exceptions; (iii) enforcement(4).
In addition, the Commission proposals clearly aim at renewing the single market and the prin- ciple of copyright territoriality, even adapting copyright rules to new technological realities.
The Commission confirms the step-by-step approach in a context of a short-term copyright re- form, without abandoning the long-term vision of EU copyright codification. The long term ob- jectives are just moved a little further into the future(5).
The “portability” of online content services
With reference to the matter of “content portability”, EU Commission has taken a concrete step. In particular, “the ultimate objective of full cross-border access for all types of content across Europe needs to be balanced with the readiness of markets to respond rapidly to legal and policy changes and the need to ensure viable financing models for those who are primarily responsible for content creation. The Commission is therefore proposing a gradual approach to removing obstacles to cross-border access to content and to the circulation of works”(6).
In this regard, the proposal for a regulation on the “cross-border portability” of online content services ensures that users – who have subscribed to or acquired content in their country of residence – can access the above-mentioned services when they temporarily move to another Member State.
In particular, as described in the official Q&A published by the Communication in December, the European Commission wants to allow cross-border portability enabling European con- sumers who buy or subscribe to films, sports broadcasts, music, e-books and games at home
to access them when they travel in other EU countries. In any case, the Regulation leaves ser- vice providers free to implement appropriate measures in order to verify the identity of the subscriber, bearing the liability of selecting those verification measures which effectively re-spect the privacy of the latter(7).
Therefore, the main objectives of the Commission are:
- the promotion of tools in order to bring more European works into the single market, in- cluding the creation of ready-to-offer catalogues of European films, the development of licensing hubs, and a larger use of standard identifiers of works;
- the support and development of a European aggregator of online search tools destined to end-users;
- the implementation of its dialogue with the audio-visual industry in order to promote le- gal offers and to find ways for a more sustained exploitation of existing European films, even exploring alternative models of financing, production and distribution in the animation
Furthermore, a goal of the Regulation must be the obligation for online content service pro- viders to offer cross-border portability to their customers. This provision will take place in the Member State in which the consumer resides, therefore, “no separate license would be re- quired to cover the temporary use of the service in other Member States”(8).
The exceptions area
In the section of copyright exceptions and limitations, the Commission highlighted the scope of the exceptions relating to the field of research and education. In particular, the project of the Commission is to take into account legislative initiatives im- plementing the Marrakesh Treaty9 and involving:
- the chance for public interest research organisations to carry out text and data mining of content they have lawful access to for scientific research purposes;
- the clarification of the EU exception for ‘illustration for teaching’, and its related applica- tion;
- the preservation of cultural heritage institutions and/or support remote consultation, in closed electronic networks, of works held in research and academic libraries and other relevant institutions, for research and private study;
- the clarification of the so-called ‘panorama exception’(10).
With reference to this last point, it must be underlined that what it is expected is a concrete commitment to a strong exception for Freedom of Panorama. At the same time, on the other mentioned points, it has to be noted that the language describing a possible exception for text and data mining is extremely limited both in terms of beneficiaries (‘public interest research organisations’) and purpose (‘for scientific research purposes’). Furthermore, restricting an exception for text and data mining to the public interest academic research severely underes- timates the transformative potential of these technologies, and will do little to improve the competitiveness of Europe in this expanding field(11).
With such respect, the Commission has proposed a “three-step” test, meaning that the ex- ceptions shall be applied only in “certain specific cases which do not conflict with a normal ex- ploitation of a work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holder”.
At the same time, the Commission underlined the importance to harmonise the levies that compensate right holders for reprography and private copying. Indeed, the Commission pointed out that many Member States imposed those levies on a wide range of media and de- vices, applied in many different ways across Europe. This caused a legal uncertainty that must be settled.
The Commission observed a need for action to ensure that different systems of levies imposed by Member States work well in the single market without raising barriers to the free move- ment of goods and services. The Commission has also explained that “issues that may need to be addressed include the link between compensation and harm to right holders, the relation between contractual agreements and the sharing of levies, double payments, transparency towards consumers, exemptions and the principles governing refund schemes, and non discrimination between nationals and non-nationals in the distribution of any levies collect- ed”(12). This means that the Commission will also begin to reflect on how levies can be more efficiently distributed to right holders.
A brief outline of the remuneration of authors and performers
The Communication calls for action to ensure right protection of authors against unfair con- tracts. In particular, due to the strategy adopted by the EU Commission, in order to achieve a modern, more European copyright framework, in a highly competitive market-place, the au- thors shall be equally treated and remunerated.
The Commission examined possible definitions of the “making available” and “communication to the public” rights13. In particular, the Commission must consider whether any specific action on news aggregators is needed, including intervening on rights. The Commission seems to want to take into account the different factors that influence this situation beyond copyright law, “to ensure consistent and effective policy responses. Initiatives in this area will be con- sistent with the Commission’s work on online platforms as part of the digital single market strategy”.
Lastly, it has to be considered whether solutions at EU level are required in order to achieve legal certainty and balance in the area of remuneration of authors and performers in the EU, even taking national competences into account.
The expected balanced enforcement
At the end of its Communication, the EU Commission also announced that there is a need for concrete reform in the field of enforcement.
In particular, the role of intermediaries in the fight against copyright infringement must change. As seen in the official Q&A, “the Commission will facilitate the development of effi- cient and balanced “follow the money” initiatives which aim at depriving commercial-scale in- fringers of intellectual property rights of their revenue flows. This process will involve rights
holders and intermediary service providers (such as advertising and payment service providers and shippers) but also consumers and the civil society”(14).
In other words, this means that internet service providers shall not be liable for the content that they hold and/or transmit passively. However, intermediaries should take effective action to remove illegal content, both in case of illegal information (e.g. terrorism/child pornogra- phy) and in case of infringing information (e.g. copyright).
The Commission will ask for more rigorous procedures in order to remove illegal content, such as ‘notice and action’ mechanisms and the ‘take down and stay down principle’).
All in all, the Commission package has regard to emerging issues relating to the full harmoni- sation of copyright in the EU, even in the form of a single copyright code, creating a situation “where authors and performers, the creative industries, users and all those concerned by copy- right are subject to the very same rules, irrespective of where they are in the EU”.
On a long-term basis, the purpose is to build a European single market, where the different cultural, intellectual and scientific productions “travel across the Europe as freely as possible”.
4 As illustrated by the Communication, the “copyright framework” is a set of 10 directives, including, without limitation, the Directive on Copyright in the Information Society (2001/29/EC, the “InfoSoc Directive”) and the Directive on the Enforcement of Intellectual Property Rights (2004/48/EC, the “IPRED Directive”).
5 “Towards a modern, more European copyright framework”, “Beautiful” moves and “bold” inspirations in EU digital copyright law, www.kluwercopyrightblog.com.
6 “COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS – Towards a modern, more European copyright framework”, Bruxelles December 9th, 2015.
7 “Towards a modern, more European copyright framework”, “Beautiful” moves and “bold” inspirations in EU digital copyright law, www.kluwercopyrightblog.com.
8 “European Commission – Fact Sheet. Making EU copyright rules fit for the digital age – QUESTIONS & ANSWERS”.
9 The Marrakesh Treaty promised to “Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled”.
10 Must be reminded that freedom of panorama is a rule contained in some jurisdiction that allows taking photographs and video of buildings, sculptures and other art-works located in a public place, without infringing on any copyright provision subsisting in such works, and to publishing such images.
11 “Leaked copyright communication: A more modern copyright framework for Europe?”, Paul Keller, November 6th, 2015.
12 “COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL
COMMITTEE AND THE COMMITTEE OF THE REGIONS – Towards a modern, more European copyright framework”, Bruxelles December 9th, 2015.
13 Reference is made to the Directive 2001/29/EC.
14 “European Commission – Fact Sheet. Making EU copyright rules fit for the digital age – QUESTIONS & ANSWERS”.