On the 5th of December 2013, the European Commission launched a public consultation as part of its on-going efforts to review and modernise EU copyright. Any business who owns or deals with copyright works in any material way is likely to have an interest in responding to this consultation, the deadline for which is 5 February 2014.

The consultation, which covers an extremely wide range of issues and is ambitious in its scope, focusses on ensuring that the EU copyright regulatory framework "stays fit for purpose in the digital environment to support creation and innovation while tapping the full potential of the Single Market, fostering growth and investment in the economy and promoting cultural diversity."

The areas covered are those identified in the December 2012 Communication on Content in the Digital Single Market (which can be seen in full here, namely  territoriality in the Single Market, harmonisation, limitations and exceptions to copyright in the digital age, fragmentation of the EU copyright market and how to improve the effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform.

In particular, the consultation seeks stakeholder views and experiences on the following issues:

  • The territorial nature of copyright and barriers to providing and accessing online content services from anywhere in Europe. The Commission acknowledges the continuing problems with the cross-border provision of, and access, to online services despite progress in this area made through the Directive on Collective Rights Management" and the "Licences for Europe" programme.
  • The interplay between the reproduction right and communication to the public / making available right in the context of digital transmissions and whether there is a need for more clarity as regards the scope of which activities require authorisation from rightsholders.
  • Where the act of communication to the public / making available is deemed to take place where the transmission covers more than one jurisdiction.
  • Whether hyperlinking should constitute a communication to the public therefore requiring the authorisation of the rightsholder. This issue is currently the subject of pending CJEU references inSvensson, Bestwater and C More Entertainment  - please seehere for our previous alert on these cases.
  • Whether the viewing of a web-page, where this implies the temporary reproduction of a work or other subject matter protected under copyright on the screen and in the cache memory of the user's computer, should be subject to the authorisation of the rightsholder. This is currently the subject of a pending CJEU reference in  PRCA v NLA concerning the application of the temporary copies exception under Art. 5(1) of the Information Society Directive, implemented in the UK by s.28A CDPA 1988 (please see "here" for our previous alert on this case).
  • Exhaustion in the context on onward sales of digital content, in particular how a system of "forward and delete" may be applied in practice, and what the economic implications might be of the creation of a market for second-hand digital copies which, unlike physical goods,  do not deteriorate in quality.
  • The advantages and disadvantages of a (non-compulsory) system of copyright registration, especially in view of the increased opportunities for the use of content provided by digital technology.
  • How to improve the use and interoperability of identifiers used to reference copyright works.
  • Whether the current terms of copyright protection are still appropriate in the digital environment.
  • Whether it should be mandatory for Member States to implement the exceptions and limitations to copyright set out in the copyright directives, in particular the Information Society Directive (2001/29/EC) and whether a higher level of harmonisation is required.
  • The impact of the vast expansion of user-generated content and whether new exceptions may be required to cover non-commercial activities by individuals, for example, combining third party sound recordings with videos, photographs etc. 
  • Whether there is a need to clarify at EU level the scope and application of the private copying and reprography exceptions in the digital environment, and whether such digital copies should be subject to levies. 
  • The effectiveness of the current rules for the remuneration of authors and performers.
  • The fitness for purpose of the current Enforcement Directive in the digital age, and how to ensure the right balance between the enforcement of copyright and the protection of fundamental rights, in particular the right to a private life, and data protection.
  • The consultation also seeks public input on whether it is necessary to clarify the role of intermediaries in the IP infrastructure.
  • Whether the EU should pursue the establishment of a single EU copyright and replace national laws, as a means of establishing a consistent framework for the rights and exceptions to copyright across the EU, as well as a single framework for enforcement.

The consultation is open until 5 February 2014. The full consultation document can be seen here.