EU INVITES COMMENT ON COPYRIGHT REVIEW

The European Commission has started a consultation on its continued efforts to review and modernise EU copyright rules. 

The consultation “document” is focused on ensuring that the EU framework for copyright remains fit for the challenges of the digital world, exploits full potential for the single EU market, and stimulates growth and investment, while fostering cultural diversity.  It’s an ambitious aim and one which has been on the EU regulatory agenda for some time.

The consultation comes in the wake of the Commission’s Content in the Digital Single Market communication of 2012 [http://ec.europa.eu/internal_market/copyright/licensing-europe/index_en.htm]. There it asserted its efforts to update the EU copyright rules through an industry-led initiative.  That process has led to recommendations for multi-territory licences for the use of music online on a small scale.  The Commission is expected to decide later in the year whether it wants to back this up with legislation.

The consultation invites views on a wide range of topics including whether there are limitations in the current regime due to a patchwork quilt of rules and fragmented protection.

The consultation spans some 80 questions over 8 sections.  It is a portmanteau ‘catch all’ document reflective of the multiple interests at stake.  It covers such issues as: 

  • Have you faced problems when trying to access online services in an EU Member State other than the one in which you live?
  • Have you faced problems when seeking to provide online services across borders in the EU?
  • How often are you asked to grant multi-territorial licences?
  • Do you think that further measures (legislative or non-legislative, including market-led solutions) are needed at EU level to increase the cross-border availability of content services in the Single Market?
  • Does the territoriality of limitations and exceptions, in your experience, constitute a problem?
  • Should digital copies made by end users for private purposes in the context of a service that has been licensed by rightholders, and where the harm to the rightholder is minimal, be subject to private copying levies?
  • Should the EU pursue the establishment of a single EU Copyright Title?

These issues are among the most perplexing issues facing rights owners, collecting societies and distribution platforms in a digital age.  The territorial aspects of licensing are particularly controversial.  Rightowners have traditionally licensed different EU countries individually taking account of the specificities of each territory.  Yet this model is coming under increasing pressure in the face of goals for a truly borderless EU and demands for a more flexible pan-European solution.

On a different but parallel track, the Commission has also indicated that it will launch an inquiry in 2014 into exclusive licensing of ‘premium’ rights.  That inquiry has arisen in a sports rights context following FAPL’s legal challenge through the UK and EU Courts.  Its interface with the current copyright consultation cannot be ignored.  See, further,  New Media Law News » Blog Archive » Do exclusive licences for media rights breach European law?  

The crux of the matter is that this has been a long standing debate and where copyright, competition law, free movement of goods and the raft of EU legislation interact.  There have been noble efforts at “solutions” including a move for an EU copyright but so far none of these have received widespread support.  The consultation is laudable for its aims.  Yet as any avid watcher of this area will know, it can take time for consultations to work their way through and for solutions to be implemented and effective.  So, is the EU licensing framework fundamentally broken or is it a case of tweaking around the edges?   

Answers on a post-(Christmas) card to Brussels. The 5 December consultation document invites comments by 5 February, 2014.

For details of the Commission’s consultation see: http://europa.eu/rapid/press-release_IP-13-1213_en.htm?locale=en

This briefing has been prepared with Suzanne Rab, a barrister specialising in EU competition and regulatory law at a leading chambers in Lincoln’s Inn and whom New Media Law instructs for competition law matters.

Please contact Ian Penman or your usual NML advisor for further information on how we may assist you in responding to the consultation.

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