Is the tide finally turning for copyright law?

01 May 2015


A draft report evaluating current EU copyright legislation set the cogs in motion for a major EU re-think of copyright law when it was published in January of this year. This alert considers the background and content of the draft report, its current status, the potential implications if the report is implemented as drafted and forthcoming developments.

Background

Directive 2001/29/EC (the "InfoSoc Directive") was aimed at harmonising copyright and related rights. Over ten years later, the European Parliament tasked Pirate Party MEP, Julia Reda, with evaluating the implementation of the Directive. Her draft report includes a number of key proposals that, if implemented, could significantly change the scope of copyright protection in the EU.

A final version of the report will be put to a vote in the Legal Affairs Committee on 6 and 7 May 2015. The EU Parliament will then vote on it on 10 June 2015.

Proposed changes - exclusive rights

Most significantly, the draft report calls for the introduction of a single European Copyright Title based on Article 118 of the Treaty of the Functioning of the European Union (TFEU). It would apply directly and uniformly across the EU. This is designed to tackle what Reda dubs, in her explanatory notes to the report, the "continuing fragmentation of national copyright laws among Member States". In these notes, she also draws on the creation of the European unitary patent and the revision of the Community trade mark as examples of how a single European Copyright Title could be created.

The report also contains proposals to harmonise the existing term of protection of 70 years down to just 50 years. Given that some rights owners have sought an extension rather than a reduction of the copyright term in recent years this proposal is likely to be met with opposition. There are also proposals to exempt works produced by the public sector within the political, legal and administrative process from copyright protection in a bid to lower the barriers for re-use of public sector information.

In addition, the draft report calls for improvements to the contractual position of authors and performers in relation to other rightholders and intermediaries. In the report's explanatory notes, Reda acknowledges that although technology has helped to increase creative output, the negotiating power of creators against providers of online services influences their remuneration, which needs to be addressed.

Proposed changes - exceptions and limitations

The draft report calls for two major changes to Article 5 (Exceptions and Limitations) of the InfoSoc Directive.

Firstly, it proposes that exceptions and limitations in the InfoSoc Directive should be made mandatory "to allow equal access across borders and to improve legal security"(para 11). Secondly it calls for the adoption of an "open norm introducing flexibility in the interpretation of exceptions and limitations in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author or rightholder" (para 13).

Various other recommendations have been made regarding freedom of panorama, text and mining data, research and education, e-lending technological protection measures, caricature, parody and pastiche and hyperlinking.

Opinions on and status of report

Since the report has been published, it has been subject to rigorous review by various Parliamentary committees. Although the Legal Affairs Committee (JURI) is responsible for the final report, other relevant committees (Internal Market & Consumer Protection 'IMCO', Culture and Education 'CULT', and Industry, Research & Energy 'ITRE') have been asked to submit their 'opinions' on the draft report.

These opinions were submitted throughout February and March this year and contain over 600 suggested amendments to Reda's draft. Details of the amendments can be found on Reda's website.

On 6 and 7 May, JURI will review the opinions and vote on whether to adopt or reject the suggested amendments in the final report. It will then go to the European Parliament for a final vote on 10 June 2015.

Last week it was reported that the EU Commission's draft report on the Digital Single Market (DSM) Strategy has been leaked by Politico before it is officially due to be released on 6 May. The draft report deals with a number of issues including the harmonisation of copyright protection in EU Member States.

The report announces legislative proposals to address unjustified geo-blocking and copyright reform, notably by allowing, text and data mining and ameliorating civil enforcement. By limiting reform to these issues, the Commission's agenda would end up being notably more limited than what Reda has proposed in her draft Report. In particular, it would appear that there would be no major reform to Article 5 of the InfoSoc Directive, let alone the introduction of an open norm as proposed by Reda. Rather, the only apparent (minor) change would be to provide legal certainty and enable researchers and education institutions to text and data mine.

However, the draft DSM Strategy report does indicate that there has been some 'bargaining' going on in Brussels. While rightholders would be clearly penalised from the prohibition of geo-blocking, it seems that the Commission would like to make the pill sweeter for them to swallow by promising initiatives on civil enforcement and reviewing the role of internet service providers (ISPs).

Implications

There is no escaping the fact that changes in technology and the way in which it is used have advanced significantly since the implementation of the InfoSoc Directive and impacted on copyright protection throughout the EU. These technological advances have clearly driven many of the reforms advanced in the draft report. Indeed Reda comments in her explanatory notes that "it seems common-sense that one of the main objectives of the Digital Single Market should be removing territorial restrictions and encouraging pan-European accessibility of services".

If Reda's recommendations are implemented, we could see a major overhaul of the existing copyright regime. It could potentially involve the introduction of a newer, more modern legal framework that makes it easier for the exchange of knowledge and culture across EU borders, particularly using digital media.

Conclusion

Julia Reda's draft report has attracted a wealth of commentary. It has divided opinion, with some commenters claiming it is simply "more of the same", while others claim it is "hugely important" in raising and dealing with the key problems with existing copyright protection.

With 600+ suggested amendments to the report, it goes without saying that Reda's proposals will have evolved by the time the final report is published. However, the draft report has undoubtedly ignited the debate on the extent to which existing copyright protection is fit for the twenty first century.

An update on the May and June outcomes are to follow... sign up below to make sure you don't miss out.


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.