The European Parliament and its path toward a Digital Single Market Act

Children of the Sea
The call to abolish the failed database directive is the highlight of the report
Licentie

Creating a fully integrated Digital Single Market (DSM) is one of the main priorities of the current European Commission. The commission has outlined its general approach in last years Digital Single Market communication (which we have discussed here). In reaction to this communication the European Parliament has been working on a report. The report on achieving a Digital Single Market Act, as adopted jointly by ITRE and IMCO Committees on 14 December 2015, was discussed and voted on by the European Parliament on 19 January 2016.

Since the report deals with issues related to the copyright framework of the European Union (among many others, such as boosting access for consumers and businesses to digital goods and services, developing the conditions for digital networks and services to prosper, and making the best of the growth potential of digital economy) Communia perceives the discussion on the document as another step in the ongoing processes related to to tearing down digital boundaries that still exist in Europe. The document is also a “demand” for the what should be contained in the Commission’s 2016 legislative proposals.

The Parliament’s recommendations to boost the Digital Single Market were approved by 551 to 88, with 39 abstentions. MEPs want the Commission’s proposals to do the following:

  1. Modernise the current copyright framework to adapt it to the digital age while taking into account various interests (#39);
  2. Recognize that exceptions and limitations to copyright enable the creative use of existing works, and introduce Europe-wide minimum standards for copyright exceptions (#43) and user-generated content, and increased clarity on private copying levies (#46);
  3. Enhance portability and interoperability in order to stimulate the free circulation of legally-acquired content or services (#37);
  4. Be cautious against indiscriminately promoting the issuing of mandatory pan-European licences as a tool to deal with geo-blocking, since this could lead to a decrease in the types of content made available to users (#38);
  5. Introduce a Europe-wide exception for text and data mining which will allow the use of content to which the user has lawful access (#45);
  6. Introduce the rule of free accessibility (a.k.a open access) of research results which are at least 50% publicly funded (#102);
  7. Abolish the Directive on Databases, since the directive is considered to be an impediment to the development of a European data-driven economy (#108).

As to the recently hot topic of platforms liability, the Parliament encouraged the Commission to examine whether potential issues related to online platforms could be resolved by proper and full implementation of existing legislation and effective enforcement of EU competition law. Moreover, the Parliament stressed that the limited liability of intermediaries is essential to the protection of the openness of the internet, and recognised in this respect that the provisions on intermediary liability in the e-Commerce Directive are future-proof and technologically neutral. The report questions “internet platform” as one-size-fits-all category (#75), warns against creating barriers to market entry by introducing new obligations to cross-subsidise legacy business models (#72), and stresses that provider liability must remain limited (#73). Such an approach is aligned with COMMUNIA ‘s views.

While the report deals with the 16 initiatives that the Commission is expected to deliver before 2016, the Commission is not required to take the opinions expressed by Parliament into account when drawing up proposals. As such it remains to be seen if and how these recommendations will translate into concrete action. Some of the language in the document is  worrying. For example, it says that copyright exceptions and limitations should be approached without prejudice to European cultural diversity. In addition, it states that the principle of territoriality is an essential element of the copyright system.  Even though some important issues are missing altogether—such as safeguarding the public domain—the report overall  is an indicator that there is sufficient momentum for meaningful reform of the EU copyright rules. In this regard the call to abolish the failed database directive is the highlight of the report. Following up on this recommendation would not only be good policy, but also set a precedent in abolishing IP rights if they do more harm than good.

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