1. EU Commission consultation on neighbouring rights and the freedom of panorama exception
Last week, the European Commission launched another public consultation as part of its work on the Digital Single Market agenda.
First, it is seeking views on the role of publishers in the copyright value chain, including the possible extension to publishers of neighbouring rights. Publishers do not currently benefit from neighbouring rights, which are similar to copyright but do not reward an authors' original creation but the performance of a work (e.g. by a musician, singer or actor) or an organisational or financial effort (e.g. by a producer), which may also assist in the creative process. The EU consultation seeks views on the challenges (if any) faced by the press in the digital environment, which are caused by the current copyright legal framework. It also asks about the potential impact of a new neighbouring right on the whole publishing sector (publishers as well as authors, consumers and the creative industries).
Secondly, the Commission is consulting on the freedom of panorama exception, which concerns the use made of images depicting buildings, sculptures and monuments located permanently in public places. The Consultation asks whether respondents have been affected by copyright when using images of such works and the possible impact of introducing a harmonised exception across the EU either: (i) for both commercial and non-commercial uses; and (ii) solely for non-commercial uses.
The consultation will run until 15 June 2016.
2. UK Government further consultation on s72 CDPA (free public showing of film contained in a broadcast)
Last year, the government consulted on reforming section 72 CDPA '88. This currently permits organisations that do not charge for admission to show TV programmes to the public without permission from the owner of copyright in the broadcast, sound recording and film in those programmes. The defence covers two types of copyright in films: (i) the original creative aspect (a "cinematographic" work, generally owned by the director); and (ii) the non-creative recording of the film (the "film fixation", generally owned by the producer or broadcaster). The government has noted that the FA Premier League case highlighted policy and legal issues in relation to the defence. First, s72 could be more aligned to EU law - EU law affords a higher level of protection to cinematographic aspects of films and only permits exceptions of this type for film fixations. Secondly, some commercial premises seek to rely on s72 to show subscription TV broadcasts without paying for commercial licences.
The government's original 2015 proposal was to narrow the s72 defence so it no longer covers cinematographic works and couldn't be relied upon by commercial premises as described above. The aim was to strike a balance between the interests of copyright owner and users of copyright works. However, responses to that proposal revealed several complexities. In particular, there would be greater legal uncertainty in relation to the licensing of works and, in practice, it would be hard to distinguish between the parts of a broadcast that only contain film fixations and the parts that contain cinematographic elements.
Accordingly, the government is now consulting on a different preferred option, which is to remove the reference to film completely from the s72 exception. It hopes that this is more straightforward and more effective at delivering the proposed change.
This consultation will run through to 20 April 2016.