Leaked copyright communication: A more modern copyright framework for Europe?

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Copyright quo vadis?
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On Tuesday the European Commission published a roadmap outlining the next steps in their effort to modernize the EU copyright rules. The (not entirely unexpected) main takeaway from this roadmap is that the Commission is retreating from its earlier announcement that it will present a comprehensive legislative proposal for copyright modernisation before the end of 2015.

Instead the Commission will address the modernisation of copyright via a series of interventions, starting in December with a “Communication on copyright which will provide a comprehensive overview of the main issues to be tackled in order to ensure the proper functioning of the copyright marketplace, in particular in the online environment and in a cross-border context”. This communication will come together with two legislative proposals, the first dealing with the (long overdue) implementation of the Marrakesh Treaty, and the other about cross-border portability of content. In a second phase – currently promised for ‘Spring 2016’ – the Commission plans to present additional measures, including legislative updates of the InfoSoc directive.

Announcements about announcements

The rest of the roadmap consists of a fairly unstructured discussion of what might possibly be contained in the December consultation, and an extensive description of the available evidence, including the highly contentious outcomes of the 2013/2014 copyright consultation and the ongoing consultations on online platforms and the SatCab directive. But at its core the roadmap does not constitute much more than an announcement of the December communication, which in turn will be an announcement of legislative and non-legislative interventions.

Fortunately, we can ignore the rather vague roadmap and jump straight to a leaked draft of the actual communication published on Thursday by the IPkat. The draft appears to be fairly recent and is scheduled to be adopted by the Commission on the 9th of December. It is also a much more coherent document that provides us with a relatively clear overview of the Commission’s ideas of how ‘a modern, more European copyright framework’ should look.

The leaked draft of the communication (‘A modern, more European copyright framework’) lists four broad areas of intervention that the Commission wants to focus on:

  • ensuring wider access to content across the EU
  • adapting exceptions to digital and cross-border environments
  • achieving a well-functioning marketplace for copyright, and
  • providing an effective and balanced enforcement system.

In the remainder of this post we will provide a high level analysis of the proposals (in the full realisation that this is a leaked draft and the proposals may change).

A modern, more European copyright framework?

When it comes to ensuring wider access to content across the EU, the Commission will initially only address the relatively straightforward question of cross-border portability of content. According to the draft communication, the Commission will present ‘a proposal for a regulation on the “portability” of online content services, to ensure that users who have subscribed to or acquired content in their home country can access it when they are temporarily in another Member State.’

With regard to the much more interesting issue of cross-border access (the ability of citizens to access content that is not available in their member state but available in another member state), the Commission seems to have given up its initial ambition to solve this issue via a legislative intervention. Instead, the leaked draft communication lists a number of non-legislative mechanisms, which even in the best case scenario would have a very limited impact.

Somewhat surprisingly, this section also announces a further unspecified legislative proposal aimed at ‘making it easier to digitise out-of-commerce collections and make them available, including across the EU.’ While this objective is certainly commendable, it is odd to see this ambition listed separately from the list of exceptions that the Commission intends to adopt: Both the European Parliament and prominent cultural heritage institutions have called for an exception to achieve this objective.

A mixed bag of exceptions

The list of exceptions proposed in the leaked communication is a bit of a mixed bag: The intention to implement the Marrakesh Treaty via ‘a mandatory, harmonised EU exception allowing for the making and dissemination, including across borders, of special formats of print material to the benefit of people with print disabilities’ can only be applauded (yet taking into account the obligations from the Treaty, this is simply the Commission fulfilling its duties).

The same goes for the somewhat surprising (especially after this summer’s controversy) intention to clarify the exception for freedom of panorama, although the leaked draft of the consultation leaves it open what this exactly means. Rather than “clarification”, we would like to see a commitment to a strong exception for Freedom of Panorama.

On the other hand, the Commission seems unwilling to make more than minimal improvements to the other exceptions on their list – such as a new exception for Text and Data Mining (TDM), the existing exceptions for reproductions and making available works in the collections of cultural heritage institutions, as well as the existing exception for illustration for teaching. Most worrying among these is the fact that the language describing a possible exception for TDM is extremely limited both in terms of beneficiaries (‘public interest research organisations’) and purpose (‘for scientific research purposes’). Restricting an exception for TDM to the realm of public interest academic research severely underestimates the transformative potential of these technologies, and will do little to improve the competitiveness of Europe in this expanding field.

Right to link in danger?

The section of the leaked document having to do with ‘achieving a well-functioning marketplace for copyright’ brings together a number of recurring themes that have been dominating recent discussions about copyright in the EU. Both the ancillary copyright for press publishers and the liability limitation for hosting providers established by the e-commerce directive are mentioned in the introductory section, but there are no concrete actions described for either. Given the general tone of the section—which echoes the popular claim that online platforms capture an ‘unfair’ proportion of the value generated by the online dissemination of cultural content—it appears prudent to keep an eye out for attempts to include proposals that would weaken the liability exceptions for hosting providers, or to introduce an ancillary copyright in a future version of the communication.

What is even more worrisome is a thinly-veiled attempt to curtail the right to link. The the Commission ‘will examine whether action is needed on the definition of the rights of ‘communication to the public’ and of ‘making available’.’ To anyone who has followed the recent discussions about the right to link on the EU level, this can only mean one thing: another attempt to introduce regulations regarding linking, which means that links to some types of content would be considered infringing without prior authorisation from the rights holders. We’ve argued before that this would be direct assault on one of the fundamental architectural underpinnings of the internet as we know it.

The final section on ‘providing an effective and balanced enforcement system’ does not contain much new content. In the leaked draft the Commission reaffirms its intention to apply a “follow the money” approach and to ratchet up some of the existing enforcement rules.

Au revoir, Digital Single Market?

All in all, this leaked draft fails to meet the expectations declared by its title, and by earlier and more ambitious proclamations by the Commission. It has all but abandoned the attempt to improve cross-border access to content. And given the relatively minimal ambitions on modernizing and harmonizing exceptions, it is difficult to see how the Commission wants to achieve its self-declared goal of creating a Digital Single Market. For a true DSM to emerge, much stronger interventions are required.

Unfortunately, this is not the only problem with the vision on copyright modernisation contained in this leaked draft of the upcoming commission consultation. In its current form the text leaves room for a number of substantial deteriorations of the status quo, such as a limitation on the right to link and as a result the DSM acronym might soon stand for Deteriorated Single Market.

There are still four weeks before the Commission plans to adopt a final version of this document, and it is important that we make it clear that what is outlined in this draft is simply not good enough to be considered ‘a more modern, more European copyright framework’.

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