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The much debated EU Copyright reform on cross border access to online contents in the Digital Single Market: a step forward in the right direction?

Scritto da  il 06 Aprile 2017

In the European framework, copyright is of cornerstone importance insofar as it protects the creators of original contents (filmmakers, authors and artists in general) and it ensures that they are adequately compensated whenever their works are used; it also plays an active role in the growth of investments in the relevant sectors: according to the data of the European Intellectual Property Office (EUIPO), in the EU the sectors considered as copyright-intensive are 33, among which stem out the design sector, the audio-visual and musical, the architectural, the publishing one and in general all those instilled in a creative and cultural environment.

As far as the legislative regulation of these sectors, the Commission has maintained that its primary goal is to modernise the EU copyright framework in order to adapt it and make it fit for the digital age.[1]

In a communication dated December 9th 2015[2], the Commission presented a proposal for a regulation on ensuring access to content across the EU by allowing consumers, who buy a film or an album or an e-book, to have access to those when they travel to other EU countries; then, it continued by proposing a regulation and a directive on copyright, oriented at widening the area of such cross-border portability access to achieve, ultimately, a more functioning and well-adapted copyright marketplace.

These proposals were regarded by the Commission as the key to bring forward a progress of the European industries in the Digital Single Market.[3]

However, as it can be expected, these proposals have met some harsh and blunt complaints from various parties. The main complaint moved by the authors of protected contents is that to allow such cross-border portability would mean for them to lose much of their incomes.

In particular, they stated that the abolishment of the geoblocking - which usually takes the form of the annoying sentence which appears on your computer screen telling you that ‘that content is not available in your country’- cannot be whatsoever accorded with the copyright protection.

In fact, as of now, the acquisition and use of the single rights related to a single piece of protected content are negotiated country by country, owner by owner; if the proposal should be approved, instead, the authors fear that a single network, that is granted access and use to a copyright content in its own country, may export such content all over the EU, as the abolition of borders for contents would suggest.

Such hypothesis is simply unacceptable for the creators of content, whom would lose much of their incomes if a film sold in only one state could circulate freely in the other 27 at the price of one.

In the musical sector, for instance, in 2014 a balance has been reached with the publishing of a directive regarding the collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market.[4] The piece of legislation, recently implemented in Italy,[5] put an end to the discussion revolving around the licenses of musical authors on online platforms: on the one hand, the directive allowed the collecting societies to freely operate in the musical framework of the internal market and to grant pan-European licenses on musical works, while on the other, it submitted such societies to some fundamental ground rules and limitations: for instance, the payment and royalties distribution have all been harmonised to a same and equal standard.

In the audio-visual and press sector, instead, the route for the harmonisation of the Digital Single Market is still ongoing and much debated. It started with the issue by the Commission of its Communication n.626 of 9.12.2015 “towards a modern, more European copyright framework” in which the Commission presented its strategy and actions aimed at modernising copyright rules in the EU; with the following Communication n.627 of 9.12.2015, the Commission released the proposal of a regulation on cross-border portability of online content services, illustrated above, and lastly in September 14th 2016 it presented another proposal, this time for a directive on copyright in the Digital Single Market.[6]

As it appears clearly in the explanatory memorandum of the Directive, “EU audio-visual works, despite the growing importance of video-on-demand platforms, constitute only one third of works available to consumers in the market; this lack of availability partly derives from a complex clearance process which the directive aims at facilitating by providing simplification and more transparency, in order to ultimately facilitate consumers' cross-border access to copyright-protected content.”

In order to do so, the proposal objective is to concede a greater degree of protection to right holders facing difficulties when seeking to license their rights and be remunerated for the online distribution of their works, while keeping in mind the strong presence and importance of the internet and its primary actors, information gatherers.

The objectives of the proposal have been transferred in three different priorities concerning: the creation and improvement of the cross-border portability of online contents to consumer; the improvement of copyright rules in the field of research, education and inclusion of disable people, which however is not the focus of the present article; and, finally, the aim of creating a fairer and sustainable marketplace for creators and press.

As far as the first of the three priorities, the Commission included a number of articles in the proposal Directive as its concretisation; it provided, for example, in Article 10 a mediation mechanism to help reach licensing deals between audio-visual rightholders and Video on Demand (VoD) platforms, including cross-border services. Then, in Article 13, it went further in providing an obligation upon the information society service providers to adopt the proportionate and adequate measures to make available or eliminate on their platforms certain copyrighted works, according to the agreements concluded with the rightholders of such contents. Moreover, in Chapter three entitled “Fair Remuneration in contracts of authors and performers” and, specifically, in Articles 14, 15 and 16 it provided respectively: a transparency obligation as regards modes of exploitation, revenues generated and remuneration due of copyright works and contents, a contract adjustment mechanism and, ultimately, a dispute resolution mechanism for all the disagreements that may arise from the application of both the previous articles.

As far as the third priority, i.e. the creation of a fairer and sustainable marketplace for creators and press and in a view of preserving the European production of creative content and balance all the compelling prerogatives accordingly under a just copyright, the proposal Directive postulates in Article 11 to grant to press publishers the same rights (reproduction right and right of making available to the public) already provided to the authors or producers of a given copyright content for the digital use of their press publications by the hands of information gatherers, such as Google and Facebook.
These platforms are able to make some important gains by the ads present in their networks and this neighbouring right would mean, for press publishers, a pay-out from the search engines.

Nonetheless, to take such a turn could imply some serious consequences: as it has already happened, some of these gatherers have often the upper hand in the digital framework and may be able to retaliate, using some restrictions of their own. For instance, what happened in Germany in October 2014 was that Google eliminated from its feed search the snippets (short extracts of articles usually accompanied by photos) of more than 150 German newspapers that had protested against the search engine to the EU Antitrust for abuse of dominant position.

Some authors commented that, to initiate again such types of action, could damage the overall industry but especially the small actors, for example the newly born digital enterprises, that are no match to such big fishes: the latter have gained, over the years, so much power as information gatherers to be able to behave in this manner and to potentially possess in their hands the fate of those small actors’ fortunes.

Other complaints to the proposal were strongly sustained by the Maltese Member of the European Parliament (MEP) Therese Comodini Cachia and the European Research Centres. On 13.3.2017 the Maltese MEP delivered a Draft Report[7] on the European Commission’s proposal for a Directive on Copyright in the Digital Single Market, while the latter released an open letter[8] to the European institutions, both regarding the need to substitute the first paragraph of the abovementioned Article 11 of the Proposal for a Directive. The original text of the article introduces a new related right for publishers, similar to the right that already exists under EU law for producers and other players of the creative industries, according to Article 2 and Article 3(2) of Directive 2001/29/EC.

In her Draft Report, the MEP proposed an alternative to the related right suggested by the Commission: in her view, in cases of infringement uses of publishers’ publications, instead of dealing pre-emptively with the problem the key is enforcement. The first paragraph of the article needs a fundamental substitution: it must not provide for press publishers the same rights as those of authors and producers of a given copyright content, but it should merely afford them “with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications”[9].

The draft report is now currently debated in the Parliament's Legal Affairs Committee, along with the whole copyright reform. By March 30th was the deadline for the amendments to the Commission proposal and in June it is expected a vote by the Legal Affairs Committee; as far as the expected plenary vote, the date shifts considerably on late 2017 if not early 2018.

As it appears from the current situation, the EU copyright reform is under some serious pressure, both internally and externally: if on the one hand the ban of the geoblocking may benefit the public, on the other it might seriously affect the economic advantages of producers and creators of contents. Equally, the creation of neighbouring rights for press publishers protects them against abuses by information gatherers, but risks to put in jeopardy the proper functioning of the digital platforms where these contents now circulate widely.

Still, it remains of pivotal significance to attain a fitting reform of the EU framework regarding copyright in the Digital Single Market with the primary aim of bringing the relevant EU industries up-to-speed in the sector, while providing them with the necessary tools to be suitably competitive. Nonetheless, many factors must be taken into account in the resolving of such intricate equation in order to achieve the best result possible. It is undeniable that, in the digital era we are now, information gatherers have a strong power which must be respected however not deferentially but with the proper and just exceptions.

The future is hard to predict and with the final vote in almost a year, anything can happen. Nevertheless, one cannot stop from wishful thinking a balance of all the needs involved and, at the same time, monitor accurately the whole process, hoping for the accomplishment of a compromise as fairest as possible.

[1] Objectives of the Digital Single Market https://ec.europa.eu/commission/priorities/digital-single-market_en

[2] Full text COM(2015)627: https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-626-EN-F1-1.PDF

[3] https://ec.europa.eu/digital-single-market/en/modernisation-eu-copyright-rules

[4] Full text of DIRECTIVE 2014/26/EU of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market : http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32014L0026&from=IT

[5] Italian legislative decree n. 25 of march 15th 2017 (http://www.gazzettaufficiale.it/atto/serie_generale/caricaDettaglioAtto/originario?atto.dataPubblicazioneGazzetta=2017-03-27&atto.codiceRedazionale=17G00048&elenco30giorni=false). The decree will enter into force on April 11th 2017.

[6] COM(2016) 593 final, full text: http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=COM%3A2016%3A593%3AFIN

[7] Draft Report, full text: http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&reference=PE-601.094&format=PDF&language=EN&secondRef=01

[8] Open letter, full text: http://www.create.ac.uk/wp-content/uploads/2017/02/OpenLetter_EU_Copyright_Reform_22_02_2017.pdf

[9] http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&reference=PE-601.094&format=PDF&language=EN&secondRef=01

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