A further step towards the reform of European copyright was taken On 29 November 2016. The Committee on Legal Affairs of the European Parliament (JURI) not only voted for a proposal for a regulation on ensuring the cross-border portability of online content services in the internal market; in its Brussels meeting, JURI also organized a public hearing regarding one specific and highly discussed aspect of the current reform of European copyright – potential obligations for service providers. In the context of the very diverse Digital Single Market Strategy, the European Commission presented in total five drafts in order to modernize copyright law in the EU that have to pass the legislative process (see also our blog post).
On 9 December 2015, the European Commission presented a proposal for a regulation on ensuring cross-border portability of online-content along with the action plan “Towards a modern, more European copyright framework”. It shall enable the subscribers of services like Netflix or Amazon Prime to access and to watch the content even when they are temporarily present in another member state than the member state of residence.
In April 2016, there was a public hearing on these issues organized by JURI. The main issues discussed involve the question of whether there will be the same rules for all kinds of online content services, whether they provide the service against payment of money or not. Another issue is the efficient verification of the temporary geographical presence of a subscriber. Here, data protection law comes into play. Tracking all movements with a precise location of a subscriber would not be proportionate. Now, the Committee on Legal Affairs has voted for a revised proposal on cross-border portability. This proposal will serve as a basis for discussion within the European Parliament which will finally adopt this regulation. The compromise proposal by the European Council was already published on 26 May 2016 and could therefore be taken into account by the JURI.
The public hearing
Particularly central to the public hearing was Art. 13 of the draft on a copyright directive. The provision is all about fair sharing of the value generated by new distribution forms online. According to Art. 13 of the draft, service providers that store and provide to the public access to large amounts of works uploaded by their users shall take measures to ensure the functioning of agreements concluded with rightholders for the use of their works. It is not surprising then that this is one of the hotly debated issues of the European copyright reform.
Amongst others, speakers at the hearing that could express their opinion were representatives of Google, of the European Consumer Organisation (BEUC) and the Independent Music Publishers (IMPALA). Most of the speakers stated that the planned provision is a step in the right direction. However, as always there has been some important critique as well. One issue that has been mentioned several times is the fact that technologies are not a guarantee for detecting all infringements. In particular, technologies often cannot decide whether a certain use falls under a copyright exception; this could only be reliably identified by a human. Another important issue that the representatives agreed on is the need for clarification of the relationship of Art. 13 of the draft on the liability privileges of providers of the E-Commerce directive 2000/31. The results of the public hearing shall support JURI in evaluating the legal draft of the European Commission.
The draft of the new copyright directive includes several, very explosive individual topics. Thus, Art. 13 of the proposal is only one of the provisions that will shape the discussion in the following weeks and months. That is why public hearings like the one on 29 November are of great importance. They demonstrate the diverse interests of the different parties involved. It is, then, all the more regrettable that the current reform only focusses on a few hot topics and does not aim to revise the outdated InfoSoc directive 2001/29.