Yesterday, the European Commission published a series of proposals to modernise EU copyright law in line with changing digital technologies and new online services. These include:
- A Communication entitled "Promoting a fair, efficient and competitive European copyright-based economy in the Digital Single Market".
- A proposed Regulation on the exercise of copyright for online transmission of TV and radio broadcasts
- A proposed Directive on copyright in the Digital Single Market
- A Press release and Factsheet.
The proposals will have a big impact on EU copyright laws and have 3 main priorities:
1. Fostering a fairer marketplace for creators and the press
The Value Gap
The proposed new Directive aims to reinforce the position of rightsholders to negotiate and be remunerated for the online exploitation of their content on video-sharing platforms such as YouTube. The Commission says that it has recognised a growing concern about the equitable sharing of the value generated by some of the new forms of online content distribution along the value chain.
Under the proposed Directive, service providers that store and provide access to large amounts of copyright works will have an obligation to take, in cooperation with rights holders, appropriate and proportionate measures to ensure the functioning of agreements with right holders for the uses of their works. Such measures can include the use of content recognition technologies. The Commission emphasises that active cooperation between stakeholders in this area will be important.
This appears to be the most controversial of the proposals with many arguing that the EU is seeking to shift the responsibility so that hosting platforms need to proactively check for copyrighted material. Others have expressed concern that there could be an increase in the mistaken blocking of legitimate content. Recital 38 confirms that the new obligation applies regardless of whether the information society services provider has the benefit of the hosting defence in Article 14 of the E-Commerce Directive (2000/31/EC). Unfortunately, however, there isn't any explanation of how the proposal will sit with Article 15 of the E-Commerce Directive that prevents service providers having a general obligation to monitor information that they transmit or store. Previous CJEU case law (e.g. Scarlet v SABAM C-70/10) has also confirmed that filtering systems are incompatible with Article 15.
The Commission is proposing to introduce a new related right for "press publishers". This will encompass the same rights of reproduction and making available to the public as in the InfoSoc Directive (29/2001), insofar as digital uses are concerned. It will also be subject to the same exceptions e.g. quotation.
The idea is that, because publishers will be legally recognised as rightsholders, they will be in a better position when they negotiate the use of their content with online services and/ or better able to fight piracy. However, there has also been criticism of this proposal. The extended right is similar to ancillary copyright laws already enacted in Germany and Spain which targeted search engines displaying snippets of news stories. The Spanish law led to Google shutting down Google News whereas many German publishers waived their rights in favour of retaining increased internet traffic from Google.
2. Adapting copyright exceptions for research, education and inclusion of disabled people
The proposed Directive introduces new mandatory exceptions:
- to allow educational establishments to use materials to illustrate teaching through digital tools and in online courses across borders;
- for researchers across the EU to use text and dating mining technologies to analyse large sets of data for the purposes of scientific research; and
- to allow cultural heritage institutions to preserve works digitally.
There are also two legislative proposals to specifically implement the Marrakesh Treaty to facilitate access to published works for persons who are blind, have other visual impairments or are otherwise print disabled.
Freedom of Panorama
The Commission states that it has reviewed the public consultation on the "freedom of panorama" exception and concluded that nearly all Member States have such an exception and those that have previously not done so have recently introduced the exception or are discussing draft measures to this end. The Commission will continue to monitor these developments and encourages all Member States to implement the exception.
3. Wider online access to content across borders
The Commission has proposed a legal mechanism aimed at allowing broadcasters to obtain more easily the authorisations they need from rightsholders to transmit programmes online in other EU Member States. The new rules, incorporated in the proposed Regulation, are inspired by those in the Satellite and Cable Directive (93/83/EEC) and should make it simpler to clear the rights that are needed for certain online services provided by broadcasters such as catch-up services.
To help the development of Video-on-Demand offerings in Europe, the proposed Directive introduces a new negotiation mechanism to make it easier to conclude licensing deals to make audio-visual works available on VoD platforms. The Commission is also encouraging the development of practical tools such as licensing hubs that will make licensing for exploitation of audio-visual works in multiple territories across the EU easier and more efficient.
Finally the proposed Directive introduces solutions for easier licensing of rights by cultural heritage institutions as required for the digitisation and dissemination of works that are out of commerce but hold great cultural value.
In addition to the proposals published today, the Commission is working on measures for an effective and balanced enforcement system, which it says is particularly important in the fight against commercial-scale infringements of copyright. In this respect, it is carrying out an evaluation of the overall functioning of the current legal framework for enforcement of IP and notes that the public consultation on the IP Enforcement Directive (2004/48/EC) has highlighted that measures and remedies provided for are not applied in a homogenous manner across the Member States, which can result in different levels of protection across the EU.
In December 2015, the Commission promised to take action to set up and apply "follow the money" mechanisms in a self-regulatory approach. Following the success of the upgraded Memorandum of Understanding on the online sale of counterfeit goods, the Commission has endorsed the conclusion of voluntary cooperation agreements involving other types of intermediary service providers in the protection of IPR, including online advertising, payments and shipping services. Depending on the progress of these initiatives, the Commission will explore other options to strengthen the involvement of intermediary service providers in the protection of IPR, such as liability for intermediaries who know that their services are being used by a third party to infringe IP but fail to act.
The proposals still need to be approved by the European Parliament and Council.
We expect many of the initiatives to be hotly debated and will continue to keep blogging on their progress.