Reform of EU Copyright Law – Proposals by the European Commission for a digital single market

“Copyright is everywhere”: In the digital knowledge and entertainment society of today, copyright law controls the distribution and use of content. Jean-Claude Juncker, President of the European Union has also recognised this. When Jean-Claude Juncker announced his five priorities for the 2014 election to the office of President, his stated first priority was copyright law. He realised that the potential of digital technologies that know no borders must be fully exploited. “To do so, we will need to have the courage to break down national silos in telecoms regulation, in copyright and data protection legislation”. The goal: the creation of a “Digital Single Market” (DSM) within the EU.

On 14 September 2016, the European Commission presented proposals for a copyright law reform. The object of these proposals is not just an improved digital distribution of copyright protected content. The intention is also to produce a “fairer and sustainable marketplace” for creators, the cultural and creative industries and the press.

1. More choice and easier access to content

The Commission took a first step towards the better integration of the digital markets within the EU back in December 2015 when it presented a proposal on the portability of online content services. That proposal would allow Europeans to take their online content, which they use legally in their home country, for example via subscription models, with them on temporary stays abroad, on trips, for example.

The European Commission subsequently, on 14 September 2016, submitted further proposals for easier access across borders:

• For broadcasting companies, the clearance of rights for EU-wide broadcasting of their programmes on the internet will be simplified significantly. This also includes the catch-up services of these broadcasting organisations, such as the ZDF Mediathek in Germany. In future, the country of origin principle will apply meaning that broadcasting organisations will only have to clear the necessary rights in their home country.
• Moreover the territoriality of copyright law will be softened to the benefit of IP TV providers (e.g. Deutsche Telekom’s IPTV Entertain). They will now have the ability to obtain a licence for the simultaneous, unmodified and complete retransmission of channels originally broadcast elsewhere in the EU via collecting societies. In particular, providers of packages of channels will be able, under the new rules, to make a select package of TV channels available to the entire EU via IP TV. These licensing options shall not, however, be available for platforms which operate through the open internet, for example Zattoo.
• These proposals are only consistent with regard to the realisation of a Digital Single Market. It remains to be seen, however, whether there is an actual corresponding demand for a Digital Single Market. The softening of the territoriality principle can also make legitimate price differentiation by rights holders more difficult or even impossible. For example premium content in professional football: the consumer prices outside the country where the league is located could increase while the consumer prices within that country remain stable.
• In addition, the Commission also proposes a facilitation of access for museums, archives and other facilities through a new Copyright Directive. They should retain the ability to digitise out-of-commerce works (books or films) and make them available across borders.

2. “Improving copyright rules on research, education and inclusion of
disabled people”

Under this heading the European Commission proposes a new exception for the use of materials in digital form to illustrate teaching, in education facilities and in online courses, which shall also apply across borders.

Moreover, the intention is to make it easier for researchers across the EU to use text and data mining technologies to evaluate larger quantities of data. In addition, a new mandatory exception will enable cultural heritage institutions to preserve works digitally. Finally, the Commission proposes further legislation for the implementation of the so called Marrakesh VIP Treaty, an international copyright agreement which aims to facilitate access to published works for persons who are blind, visually impaired or have other reading difficulties.

3. “A fairer and sustainable marketplace for creators and press”

The European Commission does not content itself merely with proposing for provisions for the improved integration of the Digital Single Market. Rather, rules for a “fairer and more sustainable market for creators, the creative industries and the press” are also presented.

The proposal for a Directive initially foresees the reinforcement of the position of right holders in negotiations with video platforms which publish user generated content and therefore play an active role in the distribution of the content. The most important example in the area of video platforms is YouTube.

Moreover, the proposal of the Commission includes a new ancillary copyright (related right) for press publishers. It will be similar to the existing ancillary copyright at European level afforded to film producers, phonogram producers or broadcasters. This would be designed to ensure that press publishers are better able to monetise their content on the internet. An ancillary copyright of this type for press publishers – in a somewhat limited scope – already exists at a German level, and the political debate surrounding the introduction of the ancillary copyright in Germany would lead one to expect that the development proposals will engender much discussion at an EU level. Therefore, in this respect, the Commission will have to consider the experiences with the ancillary copyright in Germany: in Germany, the ancillary copyright is unable to have an effect as Google, due to its market power on the search engine market in Germany, circumvents it by obtaining, upon request, free licences from press publishers.

Moreover, it is worth mentioning that the draft directive obliges players who exploit copyrighted content to inform authors and performing artists about the profits which they have earned with the author’s works or the performances of the performing artist. In addition, a mechanism will be introduced which will grant authors and performing artists an inalienable right to additional remuneration if the previously agreed remuneration is disproportionately low in light of the success of the work. This is based on, among other things, the German right to additional remuneration in bestsellers cases (Sec. 32a German Copyright Act). This is worth noting, therefore, in particular because it is the first time that European copyright law has included a regulation of general copyright contract law at a European level.

4. Conclusion and Outlook

The draft regulations and directives of the European Commission do not only contain the various rules designed to enable improved access to copyright protected works and performances across national borders within the EU. The European Commission is also taking the opportunity to regulate the markets for copyright protected works and performances. Until now the harmonisation of European copyright law has always been driven forward by the Commission using so-called directives. Directives must be transposed by the member states into national law. The Commission is now also using the instrument of the directive. At the same time, however, access to copyright protected content in particular will soon be regulated in two regulations. Regulations do not have to be transposed into national law but are rather immediately directly applicable in all member states. This shows the direction that the European Commission is taking as far as copyright law is concerned. Copyright law in Europe is moving towards a uniform set of rules in the form of a Regulation. The end result may be unified European copyright legislation and the end of national copyright law in Europe.