Sharing cultural works online is a familiar part of life for hundreds of millions of people. Many of them share to satisfy a sincere desire to empower and inform their communities, to self-affirm and self-create in the virtual world. But under the law much of this sharing infringes copyrights and neighbouring rights, which means that rightholders are entitled to seek compensation. So how can we adjust the law to the realities lived by millions online and still be fair to authors?
Looking for more balance
A proper solution for these problems needs to introduce a space of legal safety for natural persons who use copyrighted works for noncommercial purposes as well as provide for a fair and transparent scheme for remunerating rightsholders. It could build upon users’ willingness to pay for on-line sharing, as shown by some studies.
However, putting those ideals into practice and translating them into the word of law is not easy. It is because any regulation of exclusive rights of authors should comply with strict requirements formulated in the international and EU copyright regime. The starting point is that generally a copyright holder’s consent is necessary for any use of a work. Traditionally, there have also been some uses of copyrighted works not requiring consent. In the EU such uses are usually called “exceptions and limitations”.
Noncommercial sharing exception
Can noncommercial sharing be covered by an exception? Well, current exceptions and limitations are listed in the INFOSOC Directive. This is a closed list, so although the idea is appealing, the Member States are not free to add new exceptions on their own. Hence a need for the activity at the EU level.
The EU, however, has to comply with its international obligations, such as the Berne Convention. Needless to say, the treaties do not leave a window for a new exception sufficiently wide for the whole noncommercial sharing to fit. But they would accommodate EU legislation with the effect that individual users would not require rightholders consent for noncommercial sharing of creative transformations of copyrighted works. Actually, it already exists to some extent, scattered among such exceptions as quotation or parody. These should be expanded and formed in a self-standing provision of law in order to fully cover what has been known as “user-generated content”.
Here, lessons may be learned from the already existing Canadian exception for user-generated content (UGC). Namely, Canadian Copyright Act Art. 29.21 exempts individual transformative uses of copyrighted works and allows individuals, their household members, and intermediaries authorised by them to disseminate the results of such transformations if:
- done solely for noncommercial purposes,
- the source is mentioned,
- it can be reasonably believed that the original work has been non-infringing, and
- there is no substantial adverse effect on the exploitation of the original work or the market for it.
Certainly, the Canadian practices cannot be simply copied to the EU legal framework. Exceptions and limitations to exclusive rights have to comply with the three-step test of the Berne Convention (they have to be specific, not conflicting with the normal exploitation of the work and not unreasonably prejudicial to the legitimate interests of the author).
Also, the CJEU currently interprets the test in a much stricter way than the Canadian Supreme Court does. It may thus be necessary to introduce further conditions for such an exception to satisfy the strict CJEU approach. Notably, leaving intermediaries other than merely technical ones outside of the discussed solution could serve the purpose of limiting any negative impact that might occur, because direct, noncommercial user communications cannot easily scale to a point where they conflict with normal exploitation of copyrighted works and where they unreasonably prejudice authors’ interests.
License for internet users
An UGC exception in not sufficient to return copyright to its balance. Like it or not, individual users share not only creative transformations, but also original works. Thus, there is a need for an additional legislation to cover noncommercial sharing of the latter. Currently, this is thrown into the same basket as unauthorised distribution of copyrighted works for profit. This has to change, but as already said, such an activity cannot be covered by an exception under the current framework of international treaties and it requires authors’ consent.
Traditionally, extended collective licensing (ECL) has been used to obtain consent to large-scale uses of all works of a given type. So, this solution naturally comes to mind here. However, ECL cannot lead to depriving authors of their right to individually manage their works). Also, it has been stressed in the Soulier and Doke case (C-301/15), that there should be a prior authorisation from rightsholders for the legal operation of an (extended) collective management of rights. Notably, such a prior authorization can be implied from the fact of a “prior, explicit and unreserved authorisation to the publication … on the website without making use of technological measures restricting access…” (Soulier and Doke para 35, citing Svensson (C-466/12)). The CJEU has also made it clear that authors should be able to opt out from (extended) collective management without having to submit to any formalities (Soulier and Doke para 51).
One additional issue is that to obtain a license from a collecting society is a cumbersome procedure for a natural person. Therefore, such a license would have to operate more automatically. This could be provided for by the intermediation of internet service providers. Alternatively, the public administration could serve as a general representative of all users vis-a-vis collective management organisations (e.g., it is possible to draw from the experience of various Member States where selected public bodies negotiate nationwide licenses for researchers with scientific publishers).
Towards copyright of the future
Copyright is not a Greek tragedy and a happy end is possible. Individuals engaging in noncommercial sharing of copyrighted works and other subject-matter do not have to be considered copyright infringers. Rightholders do not have to despair that they are not remunerated for the sharing. The current framework of international treaties allows to solve these issues in two steps. First, by introducing an exception covering noncommercial transformative uses. Second, by introducing an extended collective management scheme covering noncommercial sharing of original works.
Krzysztof Siewicz is a Polish legal counsel specialising in information law. He works for the Modern Poland Foundation, a member of COMMUNIA and an NGO focused on creating technologies and resources that help explore free culture and public domain works, educating for digital literacy and consciousness, and educating in the area of digital rights with a particular focus on copyright, and advocating for a better copyright.
Krzysztof is currently coordinating the international CopyCamp conference, which is a part of the prawokultury.pl project and serves as a platform for generating discussion and disseminating diverse points of views on copyright in a wide social and economic context. Already in its sixth edition, CopyCamp is currently the biggest event about copyright in Central and Eastern Europe, and possibly in the whole Europe as well.