Smart Screen Exclusive

The European Union is poised to take a major step toward its long-sought goal of creating a single market for digital goods and services across the entire 28-member bloc. A leaked copy of an official communication from the European Commission, the EU’s executive body, (h/t IPKat) spells out a series of proposed steps, beginning early next year, to bring changes to copyright laws and licensing practices meant to enhance the “portability” of digital content across borders throughout the EU and to harmonize the exceptions to copyright that allow for copying of works in certain circumstances among the member-states, as well as the levies imposed by many EU countries on copying equipment to compensate copyright owners for private copying by consumers.

Among the proposed changes is the gradual elimination of exclusive territorial licensing of copyrighted works that can inhibit portability of content. In a concession to content creators, however, who often rely on pre-sales of exclusive licenses in multiple territories to finance production, the Commission recommends a “balanced” approach to the elimination of that practice to allow markets time to react and adjust to the changes:

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.

Furthermore, in order to allow for wider online access to works by users across the EU, the Commission is assessing options and will consider legislative proposals for adoption in spring 2016 aiming at:

• Enhancing cross-border distribution of television and radio programmes online via the possible extension of some of the provisions of the Satellite and Cable Directive to broadcasters’ online transmissions;
• Supporting right holders and distributors to reach agreement on licences that allow for cross-border access to content, including catering for cross-border requests from other Member States, for the benefit of both European citizens and stakeholders in the audiovisual chain. In this context, the role of mediation, or similar alternative dispute resolution mechanisms, to help the granting of such licences, will be considered [sic].

The Commission also plans to propose legislation to implement the WIPO Marrakesh Treaty on copyright and the visually impaired reached in 2013 mandating a harmonization of copyright exceptions throughout the EU:

The Commission will take action to ensure that the EU framework on exceptions that is relevant for access to knowledge, education and research is effective in the digital age and across borders.

• allow public interest research organisations to carry out text and datamining of content they have lawful access to, with full legal certainty, for scientific research purposes;
• provide clarity on the scope of the EU exception for ‘illustration for teaching’, and its application to digital uses and to remote learning;
• provide a clear space for preservation by cultural heritage institutions, reflecting the use of digital technologies for preservation and the needs of born-digital and digitised works;
• support remote consultation, in closed electronic networks, of works held in research and academic libraries and other relevant institutions, for research and private study;
• clarify the current EU exception permitting the use of works that were made to be permanently located in the public space (the ‘panorama exception’), to take into account new dissemination channels [sic].

The effort to create a “digital single market” within the EU goes back nearly a decade. Beginning in 2013 the European Commission conducted a comprehensive public consultation on proposed changes to copyright, culminating in adoption of the Directive on Copyright in the Information Society in June 2015. The new communication, which as yet carries no official publication data, represents the fulfillment of the goals of the Directive.

Even with the adoption of the Commission’s latest proposals, however, further changes to EU copyright laws could still be in the works. The new communication leaves some of the most controversial questions to arise during the process unresolved pending further consultations. Among them: balancing the rights of copyright owners with those of content aggregators:

The Commission is reflecting on the different factors around the sharing of the value created by new forms of online distribution of copyright-protected works to the various market players and, by spring 2016, will consider measures in this area. The objective will be that the value is fairly allocated to the players that contribute to generating it, and that the use of copyright-protected content is adequately remunerated for online uses.

In this context, the Commission will examine whether action is needed on the definition of the rights of ‘communication to the public’ and of ‘making available’. It will also consider other possible actions, including intervening on rights more generally. The role of alternative dispute resolution mechanisms will also be assessed. The Commission will take into account the different factors that influence this situation beyond copyright law, to ensure consistent and effective policy responses.

The Commission also plans further consultation and negotiation around developing appropriate procedures for removing illegal content from the Internet, once identified.

The full text of the Communication from the Commission can be found here.