Last week Thursday the European Commission launched its much anticipated public consultation on the review of the EU copyright rules. This consultation is the first visible sign of the second track of the Commission’s attempt to modernise the EU rules (the first track consisted of the rather unsuccessful Licenses for Europe stakeholder dialogue). In the words of the Commission the focus of the consultation is on:
… ensuring that the EU copyright regulatory framework stays fit for purpose in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity.
With regards to the contents of the consultation, a first reading reveals a mixed bag of questions, with a surprising amount of them actually touching on issues that are closely related to our own policy recommendations. The consultation comes in the form of a 37 page document with a grand total of 80 questions that cover everything from the functioning of the single market for copyrighted works, linking and browsing, copyright term duration, registration of copyrighted works and exceptions and limitations for cultural heritage institutions, education, research, persons with disabilities and “user generated content”. In addition, there are questions about private copying and levies, the fair remuneration of authors and performers, respect for rights, and even the possibility of a single EU copyright title. Finally there is an open question for everything else that stakeholders might want to tell the Commission.
The deadline for providing answers to all of these questions is the 5th of February, which if one takes into account the upcoming holiday period is rather short.Below we highlight a number of questions from the consultation. In addition to this we will prepare a more thorough analysis and make our own response to the consultation public at a later date.
Rights and the functioning of the Single Market
The first set of questions deals with ‘Rights and the functioning of the Single Market’. According to the Commission…
…the main issue at stake here is, therefore, whether further measures (legislative or non-legislative, including market-led solutions) need to be taken at EU level in the medium term to increase the cross-border availability of content services in the Single Market, while ensuring an adequate level of protection for right holders.
The questions related to this section ask for examples of problems in this area and then invite stakeholders to provide their views on how these problems should be addressed (usually split between ‘legislative solutions’ and ‘other solutions’). This structure repeats itself throughout the consultation.
Specifically, the commission is interested in perspectives on the issue of territoriality of rights clearance (i.e., should the current situation where service providers need to obtain permission for all member states where they want to offer their service be changed, for example by introducing a country of origin rule where rights only need to be cleared for the member state where the service providers is based?).
In addition, this section also contains two questions on linking and browsing that show a worrisome lack of understanding how the internet works:
Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorisation of the rightholder?
Should the viewing of a web-page where this implies the temporary reproduction of a work or other subject matter protected under copyright on the screen and in the cache memory of the user’s computer, either in general or under specific circumstances, be subject to the authorisation of the rightholder?
While it should be obvious to anyone who has ever used the internet that requiring authorisation of the right-holders for any of these acts would fundamentally break the internet, it is important to realize that both questions are currently being debated in European courts. In this context it is important that these questions are answered with a resounding no, so that it leaves European policy makers no other option than to propose legislation that would clarify that both browsing and linking do not require permission from rightsholders (or anyone else).
The remainder of this section contains questions that explore the length of copyright protection (Are the current terms of copyright protection still appropriate in the digital environment?) and the registration of works (Would the creation of a registration system at EU level help in the identification and licensing of works and other subject matter?). Communia has longstanding policy recommendations on both of these issues, and we would hope that in answering the consultation others will look at these recommendations.
Recommendation #1: The term of copyright protection should be reduced. The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility of our shared knowledge and culture. The term of copyright protection should be reduced.
Recommendation #8: In order to prevent unnecessary and unwanted protection of works of authorship, full copyright protection should only be granted to works that have been registered by their authors. Non registered works should only get moral rights protection.
Limitations and exceptions in the Single Market
The second part of the consultation focuses on ‘Limitations and exceptions in the Single Market’. Communia believes that adjusting the exceptions and limitations to copyright that are enshrined in the 2001 Copyright Directive to the requirements of the digital environment must be at the heart of any change of the European copyright rules. Again, we have a related policy recommendation that provides a good basis for addressing issues related to exceptions and limitations:
Recommendation #3: Harmonize Exceptions and Limitations of the Copyright Directive among the Member States and open up the exhaustive list so that the user prerogatives can be adapted to the ongoing technological transformations.
It is good to see that the consultation contains questions related to all aspects of this recommendation (harmonisation, need for new exceptions and limitations, and need for more flexibility).
The rest of the section on limitations and exceptions touches on specific types of uses/users benefiting from exceptions and limitations. In the first four cases (access to content in libraries and archives, teaching, research, and users with disabilities) the Commission wants to know if the relevant exceptions and limitations continue to achieve the objectives envisaged or whether they need to be updated to cover use in digital networks. The consultation also identifies 2 types of use (Text and data mining and so-called ‘User-generated content’) that might benefit from new exceptions.
Again some of the Communia policy recommendations are relevant here and can provide guidance when answering the questions related to education and memory institutions:
Recommendation #10: Memory Institutions must be enabled to fulfill their traditional function in the online environment. In order to be able to provide access to knowledge and culture they must benefit from compulsory and harmonized exceptions and limitations that allow them to make their collections available online for non commercial purposes.
Recommendation #12: Access to copyright protected works for education and research purposes must be facilitated by strengthening existing exceptions and limitations and broadening them to cover uses outside of formal educational institutions. All publicly funded research output and educational resources must be made available as open access materials.
Among the remaining questions, those in the sections on ‘A single EU Copyright Title’ and ‘Respect for Rights’ are the most noteworthy.
It is refreshing to see the Commission devote a section on the idea of a single European copyright title. The idea of having a unified EU Copyright Title that would totally harmonise the area of copyright law in the EU and replace national laws has been part of academic discussion about copyright in Europe for quite some time (see here for a recent proposal).
On the other hand, ‘Respect for Rights’ is a thinly veiled euphemism for enforcement of rights. Contrary to what the consultation suggests, respect is not created by enforcement but by establishing rules that are perceived as fair and balanced by as many stakeholders as possible. With this in mind the most effective way to improve ‘respect for rights’ would be to take user concerns seriously when addressing the other issues identified throughout the entire consultation.
Instead, the Commission has added a question that is explicitly aimed at inviting answers promoting stronger liability of intermediaries for copyright infringement by third parties:
In particular, is the current legal framework clear enough to allow for sufficient involvement of intermediaries (such as Internet service providers, advertising brokers, payment service providers, domain name registrars, etc.) in inhibiting online copyright infringements with a commercial purpose? If not, what measures would be useful to foster the cooperation of intermediaries?
This is the exact same proposal that was rejected by a broad coalition that brought down the SOPA/PIPA legislative proposals in the US earlier this year. It was also one of the most contentious issues in ACTA, which ultimately was rejected by the European Union. It is sad to see the Commission promoting this approach in the context of this otherwise reasonable consultation.
It is somewhat unclear what will happen to the outcomes of the public consultation. Given that next year is an election year it is rather unrealistic that they will feed directly into a legislative proposal for a new or updated EU copyright directive. At best, we hope that the current Commission will provide the next one with a clear and precise roadmap for copyright reform – which we hope will be in line with our recommendations.
But regardless of the likelihood of immediate outcomes, it is important that stakeholders who are in favor of meaningful copyright reform make themselves heard by providing their perspectives. Communia will work with a broad coalition of other organisations on ensuring broad feedback from across all affected sectors. As part of this we expect to publish a more detailed answering guide at the beginning of next year.