Leaked Communication from the European Commission: "Towards a modern, more European Copyright framework". | Fieldfisher
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Leaked Communication from the European Commission: "Towards a modern, more European Copyright framework".

Nick Rose
Last week saw a leak of the EU Commission's much anticipated Copyright Framework Communication.  This will be the latest in the EU's copyright reform series following the Digital Single Market (DSM) Last week saw a leak of the EU Commission's much anticipated Copyright Framework Communication.  This will be the latest in the EU's copyright reform series following the Digital Single Market (DSM) strategy communication in May of this year.

It is encouraging that the Commission looks like publishing this Communication in December only 7 months after the launch of the DSM. However, the concrete proposals are limited in scope. There is a commitment to ensure "portability" of online content services by Spring 2016, which is limited to allowing people to access online content legally purchased in their home country when they travel to another Member State. Whilst this is unlikely to be controversial, it also isn't a major concern to a lot of EU citizens. The other concrete proposal is for a harmonised exception to copyright infringement to benefit people with print disabilities.

Wider-ranging copyright reform proposals remain on the agenda but we will need to wait until at least next year for further action. The Commission will look at cross-border distribution of content but, as we expected, this will be done via reform of the Satellite and Cable Directive as opposed to the copyright regime. The Commission will also assess options for harmonising copyright exceptions, particularly those relating to non-commercial text and data mining and freedom of panorama. It will review enforcement options and private copying levies in the single market and will examine the scope of the definitions of "communication to the public"/ "making available to the public". The Commission hasn't ruled out a single copyright title as a long term plan but goes on to highlight how complex its introduction would be.

What's in store for the short term?

(1) Portability of Online Content Services

As foreseen in one of our previous publications the Communication does not fully address the issue of geo-blocking. Instead, it has indicated a gradual approach to removing obstacles to cross-border access to content. As a first step, it is committed to a regulation on the limited issue of "portability" of online content services by Spring 2016. This will allow people who have travelled to a different Member State to continue to access content to which they have subscribed. Next year, the Commission will also look at enhancing cross-border distribution of TV/ radio programmes by the possible extension of certain provisions of the Satellite and Cable Directive (such as the country of origin principle). In addition, it will review how rights holders and distributors can reach agreements on licences that allow for cross border access to content, so as to not prohibit passive sales into other Member States. No doubt the latter will be reviewed in conjunction with the relevant ongoing competition inquiries.

(2) Exceptions

The Commission has recognised that one of the most visible areas of fragmentation in EU copyright law is that of exceptions, which are discretionary for Member States and generally broadly defined. It will propose legislation to introduce a harmonised exception to allow dissemination of special formats of printed material to benefit those with visual impairments. Probably the most noteworthy future proposal relates to text and data mining. In order to encourage cross-border research, innovation activities and cross-discipline collaboration, the Commission is assessing options to allow public interest research organisations to carry out text and data mining for scientific research purposes. It appears that this is likely to be limited to non-commercial use only. The Commission has also proposed to clarify the Freedom of Panorama exception in order to take into account of new dissemination channels. This exception allows people to take and upload a photograph of monuments permanently in public spaces and received a substantial amount of publicity earlier in the year in light of the Reda report.

(3) Enforcement

The Commission has recognised that enforcement is a key focus and has proposed to continue looking into the 'follow the money' approach to deprive those engaged in mass-scale commercial infringements of revenue streams. The Commission will engage with all parties concerned, including intermediary service providers, in order to create effective Codes of Conduct, which may ultimately be backed by legislation. The Commission will also assess enforcement options and consider the need to amend the framework by Autumn 2016 in order to adapt to the challenges of the DSM. It will have particular regard to the rules for identifying infringers, the (cross-border) application of provisional and precautionary measures and injunctions, the calculation and allocation of damages and legal costs. There is also the ongoing public consultation on "notice and action" mechanisms.

What's in store for the medium-longer term?

(4) Private Copying Levies

Following the 2015 UK High Court decision quashing the private copying exception and the numerous referrals to the CJEU from around the EU, the Commission is proposing to ensure that there are no single market issues arising from different private copying levies being imposed by different Member State systems.

(5) Definitions and Hosting Defence

The Commission will examine whether action is needed on the definitions of 'communication to the public' and of 'making available to the public'. This is sensible in light of the inconsistencies and uncertainty that has arisen around the EU in relation to the workings of the Internet, such as hyperlinking and streaming. This is coupled with the ongoing consultations on intermediaries and online platforms. These review whether: (i) the 'hosting defence' in the E-Commerce Directive is too wide and encompasses new players in the market, whose activities go beyond the mere conduit of content; and (ii) authors and performers receive fair remuneration from new forms of online distribution of copyright protected works.

(6) The Single Copyright Title

We did not expect a single copyright title to feature in any short term plans. However, it is interesting that the Commission has not relinquished this vision in its entirety, which will remain on the longer term agenda, following input from experts and Member States. The Commission has, however, noted that full harmonisation of copyright would require substantial changes in the way our rules work and a single copyright jurisdiction with its own tribunal.

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