In the first of a series of five, this blog overviews the European Commission’s action plan for modernising European copyright.

Background

In May 2015 the announcement of the EU Commission’s Digital Single Market (DSM) strategy received much attention. Our DSM Watch team is a multi-jurisdiction, cross-practice group working together to keep you informed as the initiatives under the DSM strategy roll out.

As part of the initiative’s first pillar “Better online access for consumers and businesses across Europe“, the DSM strategy outlined the Commission’s key areas for legislative action to create what it called “a modern, more European copyright framework“, and to improve access to digital content. On 9th December 2015, the European Commission published an action plan as well as a first legislative proposal on the revision of European copyright. With the action plan “Towards a modern, more European copyright framework” as well as a draft regulation on cross-border portability of online content services the European Commission aims for a modernisation of European copyright law in the context of developments due to the digital age.

Following our initial blog post of 9th December 2015 DSM Watch’s series of five blogs provides more detailed insight on the legislative and political measures envisaged by the European Commission.

Widening access to content across the EU

The first (of four) themes addressed in the action plan aims to ensure wider access to content across the EU. The focus of the Commission lays on facilitating the access to European cultural works. Today, access to such works is not only hindered by national regulations but also by economic considerations. In particular, licences for European works are often limited to certain territories for economic reasons such as the financing of film projects. In order to achieve a wider access to content, legal and political aspects as well as a stable funding model for the industries have to be considered.

As a first concrete step in this field, the Commission presented a draft regulation on cross-border portability of online content services. For example, a Spanish user of an online video streaming service shall be able to watch the films he has subscribed for not only in his home country but also when travelling within the EU whether for private or business reasons. Part 2 of this series will be an analysis the legislative draft in more detail.

Beyond that, the European Commission considers extending the scope of the satellite and cable directive 93/83 EEC to transmissions via internet. One of the key points of that Directive is that the act of “communication to the public” (a key right of copyright owners) is deemed to be limited to the country where the signal is transmitted. Therefore, the satellite broadcaster is subject to only one legal system within the European Union. According to the action plan, a potential extension would only apply to internet transmissions by conventional broadcasters but not by other media services. On the one hand, this limitation sounds well-reasoned as online services of broadcasters are comparable to existing satellite and cable transmissions covered by the Directive. Still, with regard to the increasing intersection between traditional broadcasters and new forms of media services, one consistent provision on internet transmissions would be preferable. Whatever the final proposal of the European Commission might be, an appropriate remuneration of the right holder for such cross-border use has to be ensured, and the potential impact on broadcasting exclusivities must be considered.

The Commission also intends to encourage cross-border licenses and the facilitation of access to out of print works. However, the action plan does not reveal specific measures to achieve those aims. Contrary to widespread fears, the European Commission does not (yet) put the territorial limitation of copyright into question; though the full harmonisation of copyright in the EU including a single copyright title is clearly a long term vision of the current Commission. For now, Geoblocking will only be tackled when it comes to unjustified limitations in online sales. In the context of copyright, the Commission’s view is that geoblocking represents a legitimate measure to protect someone´s rights (see Fact Sheet published by the Commission).