As reported on IP blogs (notably the IPKat), sources have obtained an internal draft of the European Commission's White Paper on "A Copyright Policy for Creativity and Innovation in the European Union".
The policy paper follows the consultation launched by the Commission in December 2013 (on which, see here) and seeks to deal with three main objectives, namely (1) further facilitating the availability of and access to content in the digital single market, (2) ensuring the optimal articulation between copyright and other public policy objectives, and (3) achieving a copyright marketplace and value-chain that works efficiently for all players and gives the right incentives for investment in creative and intellectual work.
To this end, the paper makes a number of comments and suggestions with regard to the following issues:
- Cross border dissemination of creative content in the single market. The most common problem in this area identified by the consultation is that consumers are not able to access content services available in Members States other than their own. The Commission poses the question of whether there is a need to further define the act of "making available" on the internet and suggests three possible routes:
- redefine the act of "making available" by localising the act in one single Member State (the "country of origin") for example where the centre of activities of the uploader is, or where the upload takes place. In this scenario, a licence from the relevant rights holders for that country would suffice for service provision to take place legally in all Member States.
- localise the "making available" act in those countries that the service provider "targets", in which case licences would only be required for those territories.
- substitute the current system of national copyright titles with a single unitary copyright title.
- Exhaustion of the distribution right in relation to digital transmissions. The Commission states that policy initiatives on this issue are premature at this stage but that it is important to continue to examine the issue and observe how licensing models and technologies evolve. As reported below, the German Court of Appeal has recently issued a ruling that the exhaustion of the distribution right does not apply to digital works other than software.
- The application of rights in digital networks: browsing and hyperlinking. Notwithstanding recent CJEU case law in this area (notably Meltwater and Svensson), the Commission acknowledges the continued legal uncertainty over the extent to which certain acts require authorisation and calls for further clarity on the concepts of "reproduction" and "communication to the public" in digital networks, notably with regard to browsing and hyperlinking.
- Helping knowledge and heritage institutions to fulfil their public interest objectives. The Commission intends to consider clarifying the application of the preservation exception, to all types of preservation copying, all types of work and all protected subject matter. The Commission also considers updating the consultation exception to cover remote access to works. However, the Commission considers it premature to introduce a legislative initiative on e-lending, in view of the state of development of the e-book market and the piloting and roll-out of licensing solutions.
- Harnessing new possibilities in education and research. The Commission could consider further harmonisation of the teaching exception, albeit taking into account existing licensing agreements and recent developments in the educational publishing market. It is also important to clarify the legal framework for text and data mining, to facilitate it and make it workable for all parties as soon as possible.
- Improving access to information and knowledge for persons with a disability. In addition to the ratification of the Marrakesh treaty (on which, see here), the Commission states it would be important to consider the further harmonisation of the current exception for persons with disabilities. Note, that a wider exception covering access to works by disabled persons has been introduced in the UK – the full text of the Regulation can be seen here). The Commission has indicated that the current legal framework does not appear to have a chilling effect on user-generated content but nonetheless wishes to reduce possible grey areas around this to make sure the opportunities presented by UGC are fully exploited. The EU should first consider ways to clarify the application of relevant copyright exceptions, notably exceptions for quotation, criticism or review. In parallel, licensing mechanisms should be encouraged and facilitated for those uses that do not fall within the relevant exceptions. In this regard, as highlighted above, the draft revised UK copyright exception for quotation is due to come into force in October 2014 – the current draft regulation can be seen here.
- The required infrastructure for the market to deliver efficient licensing. The Commission states that solutions for the identification of works and efficient data management should first and foremost be delivered by the players in the market, i.e. rightsholders and distributors.
- Fair remuneration of authors and performers. The Commission identifies there is a need to further consider concerns in this area.
- Solutions for mass digitisation. The Commission indicates mass digitisation could be facilitated by developing contractual and sector-specific measures which streamline the clearance and licensing of rights.
- Enforcing rights in a meaningful manner. The Commission identifies the enforcement of rights in the digital environment as a key aspect of the functioning of the market., and suggests a number of policy orientations: (1) a focus on enhancing due diligence obligations for all actors in the value chain of digital content distribution – in this regard intermediaries who do not necessarily themselves carry out acts which require authorisation could be encouraged to assist in addressing the commercial offer of copyright-infringing content online, (2) legal clarification as to the different intermediaries that can be involved, on the types, conditions and duration of any available measures, as well as the articulation between the different fundamental rights involved, and (3) a focus on a "follow the money" approach seeking to threaten piracy as a business model by limiting the provision of payment services and advertising to such websites.
As can be seen, the policy paper merely addresses issue for further consideration and does not set out any express recommendations. Rather, the Commission has set out that policy decisions on the issues raised should be considered in the 2014-2019 legislative period.
As highlighted above, this is an internal draft and the final version is yet to be released. Recent reports suggest that publication is now expected in September 2014. The full text of the policy paper can be accessed here.