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European Commission publishes draft legislation to modernise copyright law

A part of the Digital Single Market initiative

23 November 2016

On 14 September 2016 the European Commission published two draft copyright Directives and two further draft copyright Regulations. Together with the December 2015 draft Regulation on cross border portability of online content services, these cover much of the ground set out in its December 2015 communication "towards a modern, more European copyright framework", as part of the wider Digital Single Market initiative.

The proposals are driven in part by the recognition that the way we consume copyright content has changed dramatically over the last decade. The Commission's previous major foray into this area, the Information Society Directive, was adopted in 2001, prior to the mass adoption of the internet. 

Online retransmission of television and radio programmes

One of the draft Regulations governs copyright and related rights for online transmissions and retransmissions of television and radio programmes, and is designed to facilitate rights clearance across the EU.  Following the Commission's review of the Satellite and Cable Directive, the draft Regulation adopts the approach taken in that Directive i.e. that rights are cleared on a "country of origin" basis for transmission across the EU, and rightsholders other than broadcasting organisations must exercise their retransmission rights through collecting societies.  

Importantly, this draft Regulation only applies to simulcasts of broadcasts and to catch-up services available for a limited period of time following the original broadcast; it will not introduce pan-EU rights clearance for "video-on-demand" services.  For these services, the Commission proposes, via the draft Directive on Copyright in the Digital Single Market, to require Member States to nominate an impartial body with relevant experience to assist would-be licensees with negotiation if they experience difficulties in doing so directly.   Some will argue that the Commission has not gone far enough in respect of VoD services, as these increasingly supplement and ultimately replace broadcast media for consumers, but the Commission concluded it was too early in the evolution of the VoD market to attempt this.

Out-of-Commerce works, exemptions and addressing the "value-gap"

As well as requiring Member States to ensure there is an impartial body to facilitate VoD licence negotiation, the draft Directive on Copyright in the Digital Single Market contains other measures aiming to bring European copyright law into the digital age. 

First, the Directive contains a regime for collective licensing in respect of "out-of-commerce" works for cultural heritage institutions, such as libraries and museums. Out-of-commerce works are works still protected by copyright but no longer available to the public, for example where a book is no longer in print. The collective licensing regime will allow cultural heritage institutions who have agreed a licence to digitise, distribute and communicate to the public out of commerce works or other subject matter in their permanent collections with a collecting society  to apply this licence to similar works whose rightsholders have not mandated the collecting society (although non-mandating rightsholders will have an opt out right).   This measure is not limited to books and journals, but would also cover other content including audio and audiovisual content.   The Directive also proposes a blanket exception for cultural heritage organisations to make copies of works in their permanent collections for preservation purposes.

Other initiatives aim to ensure there is a consistent approach across the Member States to the exceptions and limitations to copyright under EU law as applied to the digital environment.  For example, the proposal requires Member States to provide a mandatory exception with cross border effect for online teaching (provided this is via a secure network with access limited to pupils, students or teaching staff), but with some flexibility depending on the availability of adequate licences.

Exceptions for automated data and text mining in the digital environment have been a controversial area for some years.   On the one hand, scientific and other commercial publishers fear that data mining will undermine the market for their own enhanced offerings.  On the other hand, commercial research organisations say that they need the right to mine data for commercial purposes, arguing that it is an "accident" of intellectual property law that use in digital form is requires a licence, whereas reading a book or an article does not.

The proposal introduces a text and data-mining exception for non-commercial scientific research as well as for organisations whose primary goal is to conduct scientific research (or scientific research combined with educational services) (a) on a not-for profit basis or by re-investing all profits in its scientific research or (b) pursuant to a public interest mission recognised by a Member State.  The proposed exception requires that access to the results is not available on a preferential basis to any organisation exercising a decisive influence upon the research organisation.  

Scientific and technical publishers will be nervous about the impact of the data mining exception.  Press publishers across the EU should however welcome a new 20 year press publication right, in recognition of the fact that in the transition from print to digital they are facing problems in licensing online use of their publications and recouping their investments.

Further proposals seek to address the "value-gap" in the digital environment between the rightsholder and the content provider.  The proposed Directive includes provisions aimed specifically at platforms which allow users to upload content to be enjoyed by other users.  Currently, the platform benefits from the advertising revenue the content generates, but the rightsholders may not share the benefit (especially where it is uploaded without their consent).   Member States will be required to ensure that rightsholders receive sufficient information on the exploitation of their works to ensure they are fairly remunerated or can prevent availability of their works on the service.   This will include appropriate and proportionate use of measures such as effective content recognition technologies, and the availability of complaints and redress mechanisms.

The proposal also includes provisions to increase transparency of information provided to authors and performers about the exploitation of their works, and for mechanisms for adjustment of remuneration where contracts with authors or performers leave them disproportionately poorly remunerated compared to the revenues and benefits generated from the exploitation of their works.

Implementing the Marrakesh Treaty to Facilitate Access to Published Works for Persons who Are Blind, Visually Impaired, or Otherwise Print Disabled

The remaining draft Directive and Regulation concern the implementation of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who Are Blind, Visually Impaired, or Otherwise Print Disabled. The Marrakesh Treaty, adopted in 2013, requires signatories to introduce exemptions and limitations to copyright to facilitate access to print materials to those with visual impairments or conditions such as dyslexia. The combination of a draft Directive and Regulation aims to facilitate sharing of accessible formats both within the single market and with countries outside of the EU.