Two roads diverged in a wood, perhaps the Commission favoured the one most travelled. The European Commission, within the framework of its ‘Digital Single Market’ strategy, has recently launched a few proposals hoping to adapt the existing copyright regime to the ‘online’ world. Apart from Directive COM(2016) 596 and Regulation COM(2016) 595 improving access to certain works for the blind, visually impaired or print disabled, two other proposals have been made by the European Commission. Alongside its “Proposal for a regulation laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions” (COM(2016) 594), it has also announced its “Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market” (COM(2016) 593). These proposals are welcomed by some, and critically acclaimed by others, which, perhaps most of all, is evidence of the difficulty in finding a balance between the ‘rights’ of different stakeholders in the world of copyright.
The latter two proposals centre on three pillars: (1) “Better choice and access to content online and across borders” (“first pillar”), (2) “Improving copyright rules on research, education and inclusion of disabled people” (“second pillar”) and (3) “A fairer and sustainable marketplace for creators and the press” (“third pillar”). These three pillars will encompass several legislative reforms, namely (in general):
- the application of the principle of “country of origin” to so-called “ancillary online services”;
- the obligation for copyright holders and holders of related rights (other than broadcasting organisations) to exercise their retransmission rights via (one) collective management organisation;
- several exceptions:
- An exception to the reproduction right for reproductions and extracts made by research organisations to enable them to carry out text and data mining in works or other subject matter which they have legally acquired for the purpose of scientific research;
- an exception to the reproduction and communication to the public right in favour of digital and cross-border teaching activities;
- extension of non-exclusive licences for use of out-of-commerce works by cultural heritage institutions;
- a negotiation mechanism that aims to improve access to and availability of audiovisual works on video-on-demand platforms;
- the granting of a reproduction and making available right to press publishers for digital publications;
- the obligation for user-upload platforms, which give access to large amounts of copyright-protected content (e.g. YouTube), to put mechanisms in place for monitoring copyright infringement (this obligation is a departure from the “safe harbour” approach in E-Commerce Directive 2000/31/EC).
It remains to be seen how the proposed legislative reforms will, in practice, affect the balance between the ‘rights’ of the different stakeholders, with the generation of business on the one hand, while also protecting content that is needed for generating business. What is certain is that the proposals will not be of much help to online distributors of music, who, despite the adoption of the Collective Rights Management Directive 2014/26, will still have to conclude different agreements involving different repertoires and territories with several collective management organisations and/or other rights holders, delaying the development of online platforms and the distribution of music in the EU. Additionally, no measures directly affecting the (fundamental) problems that authors face have been taken. Finally, it will be interesting to see how the accessing of works will be affected by the monitoring obligations imposed on user-upload platforms.