EU Digital Single Market strategy: a starting point for copyright reform

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Towards a digital single market?
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Today the European Commission presented an ambitious package of reform proposals known as the Digital Single Market (DSM) Strategy for Europe. Among other topics like ‘Affordable high quality parcel delivery’ and ‘Building the data economy’ the DSM strategy represents the first concrete announcement of upcoming changes to the European Union’s outdated 2001 Copyright Framework.

As part of the strategy the Commission wants to ensure “better access for consumers and businesses to online goods and services across Europe” which “requires the rapid removal of key differences between the online and offline worlds to break down barriers to cross-border online activity”. While at this point the Commission is far from proposing a general overhaul of the copyright system the DSM strategy contains promising language. It also shows that those in the Commission who are looking for meaningful changes to the European copyright rules (led by Vice President Ansip) have managed to keep the upper hand on their more conservative colleagues (led by Commissioner Oettinger) who so far have mainly been interested in expanding copyright and stepping up enforcement.

In terms of concrete copyright reform the Commission is announcing that it will make “legislative proposals before the end of 2015 to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU, including through further harmonisation measures”. The Commission’s proposal highlights the following areas that the Commission wants to address “ (i) portability of legally acquired content, (ii) ensuring cross-border access to legally purchased online services while respecting the value of rights in the audiovisual sector, (iii) greater legal certainty for the cross-border use of content for specific purposes (e.g. research, education, text and data mining, etc.) through harmonised exceptions,(iv) clarifying the rules on the activities of intermediaries in relation to copyright-protected content and, in 2016, (v) modernising enforcement of intellectual property rights, focusing on commercial-scale infringements”.

It is encouraging to see the ambition to “reduce the differences between national copyright systems” and to “allow for wider online access to works by users” prominently featured here. As we have argued in the past this can best be achieved by harmonizing and updating the existing exceptions. The need for harmonisation and updating goes much further than the three examples provided in the DSM strategy. European users also need more legal certainty when quoting or otherwise transforming material in including audiovisual material. The same is true for cultural heritage institutions who need to be enabled to share collections online and make them available across all of Europe.

The fact that the Commission plans to harmonise some of the exceptions of the copyright directive is a good start to have a wider discussion about how a framework of exceptions and limitations reimagined for the digital environment needs to look and we are looking forward to engaging with the Commission on this. The Commission seems to take a fairly narrow view with regards to which exceptions have a cross-border impact and proposes to focus on those. From the perspective of internet users all exceptions that allow online uses have a cross-border impact by definition and should thus be harmonised as much as possible.

With regards to the last two areas for intervention identified by the Commission, it will be important to ensure that the discussions about the role of intermediaries and enforcement remain in the background until the contours of a forward-looking EU copyright framework have become clear.

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