This fourth blog in a series of five looks at the European Commission’s plans for “Creating a fairer marketplace”.
The Digital Single Market (DSM) strategy – presented in May 2015 – contains 16 initiatives in a variety of fields such as telecommunication, consumer rights and Big Data, each of which is intended to bring us one step closer to the European digital single market. 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.
One of the 16 initiatives focuses on copyright reform. On 9th December 2015, the European Commission presented its action plan “Towards a modern, more European copyright framework” which touches upon four different topics. Additionally, the Commission provided a draft Regulation on cross-border portability of online content services.
In the past few weeks, we have posted on “Widening access to content across the EU” (Part 1), the draft regulation on cross-border portability of online content (Part 2) and on copyright exceptions (Part 3). Here we take a closer look at “Creating a fairer marketplace”. Watch out here for our last blog post in the series, on “Fighting Piracy”.
Creating a fairer marketplace
The third area of the action plan is all about the adequate sharing of the value created by new forms of online distribution of copyright-protected works. Receiving an adequate remuneration for creative work is fundamental for authors. In the light of new technologies, the Commission shows a growing concern as to whether copyright still allows for a fair distribution of values in the digital world.
An example for the on-going development of the digital market is the use of so-called framing. Although framing is technically based on a mere hyperlink, the content is embedded in such a way that it appears to be part of the framer’s own website. Thus, from the user’s perspective, a framed work is hardly distinguishable from a copy of the work concerned. However, according to the European Court of Justice (CJEU), framing does not constitute a “communication to the public” and therefore does not infringe the copyright on the embedded work (CJEU, 21.10.2014, Rs. C-348/13 – Best Water) – see more on that line of case law in the box below.
Against this background, it is unsurprising that the Commission wants to have a closer look at the question of adequate remuneration of authors in the digital age. The discussion brings in some types of online platform and news aggregation services. In particular, the Commission will assess whether further legislative or political action is needed in this context. The analysis of the results of the consultation on online platforms will likely influence the debate: the first brief results were published at the end of January.
It’s not clear what the Commission’s thinking is at this stage. For instance, will they propose a pan-EU ancillary right for newspaper and magazine publishers, like Germany and Spain have already implemented. So far all the Commission has done is to stress the great importance of a harmonised EU-wide approach and hinted that legislative proposals might arrive in late June or early July this year.
Framing: where’s the European case law going?
Even though the CJEU has consequently applied the arguments and definitions developed in the context of hyperlinking (CJEU, 13.02.2014, Rs. C-466/12 – Svensson), this and other recent decisions on the definition of “communication to the public” were subject of criticism. At a conference in January 2016, CJEU judge Jiří Malenovský who has been involved in most of the CJEU’s copyright decisions over the last few years not only provided his view on the definition but also announced that the CJEU will clarify the relation between the different decisions in the case Reha Training (CJEU, C-117/15, see also the blog post of June 2015) which is currently pending in Luxembourg (see the post by Marcella Favale on CREATe).