Reforming copyright rules in the EU is part of the Commission’s Digital Single Market (DSM) strategy and this news comes after its announcement last year.
The Commission’s objective is to make the rules “fit for the digital age” and “reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU”.
The legislative proposals in summary
The Commission proposed two Directives on copyright: one for new copyright rules in the DSM and the other to implement the Marrakesh Treaty.
There are also two Regulations: one to enhance access and distribution of digital content in the EU (portability) and the other, which relates to the Marrakesh Treaty, to allow for the movement of special format copies of copyright protected works between the EU and third countries.
Earlier this month Advocate General Wahl in his Opinion said the EU has exclusive competence to conclude the Marrakesh Treaty.
New right, portability, exceptions and obligations
Four provisions stand out from the proposals.
The first is a new related right for the press publishing industry to deal with digital uses of their content. This right will have the same scope as the rights of reproduction and making available to the public under the InfoSoc Directive and member states can allow publishers to claim compensation for any uses made under an exception.
According to the Commission, this means that press publishers “will be in a better position when they negotiate the use of their content with online services using or enabling access to it, and better able to fight piracy”.
The second is that the Commission proposes to make it easier for broadcasting companies to obtain necessary authorisation from rights holders to disseminate audio and visual content across the EU (so-called portability). The rationale behind this is to make it possible for consumers in the EU to have access to legitimate content from anywhere in the EU.
Thirdly, there will be exceptions to provide legal certainty for research institutions that need to mine data and for cultural heritage institutions to preserve and share out-of-commerce works online, and for cross-border access to special format copies of copyright-protected works for the visually-impaired.
The fourth important proposal places an obligation on online operators such as YouTube to monitor content uploaded to their platforms.
There are also the so-called “transparency obligation” on rights holders’ counterparts to ensure authors and performers are on a better bargaining position when negotiating contracts concerning their rights. There are associated provisions concerning this transparency obligation such as a dispute resolution mechanism.
These proposals are set to have considerable effects on those who create and exploit copyright works.
In a statement EU Commissioners Günther Oettinger and Andrus Ansip said the proposals take into account the “new digital reality” and will benefit consumers in Europe.
Concerns over freedom of expression and sharing online
Some are concerned about restrictions to freedom of expression and other fundamental rights, especially on the use of hyperlinks.
Executive director of the European Publishers' Council Angela Mills Wade said there is no need to worry over this. “The link is safe. The European Commission clarified this point and there is a recital which explains that protections do not extend to hyperlinks that are not part of 'communications to the public'. Publishers encourage their readers with the share button to post to social media and share their content with friends and family for personal use and they have no desire or interest in that changing,” she explained.
Mills also said that fears over lack of access to original content were baseless: “These fears have been peddled by scare-mongering anti-copyright activists. It would be entirely against publishers' interests to reduce access to our content." She added: “This new right should give publishers the confidence to invest in more professional content knowing that they have more chance of getting a return on that investment; whereas currently, this high-cost valuable content is being monetised by third parties and publishers' and journalists are not getting the reward for their work. This is an unsustainable situation which can only lead to publishers' no longer affording to employ journalists or distribute professional content.”
Some stakeholders have already expressed their dissatisfaction over the proposals, arguing that they fail to provide a fairer online environment for all. Creative Commons say the package of proposals “introduces protectionist measures for incumbent rights holders while providing only lip service to Internet users, teachers, new businesses, and consumers”. In its view, the proposals failed to “serve the goals of a unified digital marketplace across Europe”.
In a blog post ‘European copyright: there's a better way’ Google argued that placing greater responsibility on hosts to monitor copyright infringement could threaten the “user’s ability to share content”. The company called on the Commission to revise the proposals and strike an appropriate balance which “enables rights holders to manage and profit from their work while also allowing the creativity and innovation of the web to flourish”.
The Publishers Association is generally pleased with the proposals. Chief Executive Stephen Lotinga said: “This is a sensible set of proposals which recognises the role of both publisher and author within the copyright framework.” Lotinga, however, added: “It is also disappointing that the Commission chose not to extend the publishers related right to all types of publishers without any real explanation.”
The Commission plans to adopt these legislative proposals and send them to the European Parliament and the Council for consideration.
What remains to be seen is if any amendments will be made to them. Public consultations on the DSM strategy are continuing, and there are other initiatives expected by the end of this year including proposals concerning IP enforcement.