EU reforms will mean fewer rights for copyright holders, says expert

Out-Law News | 09 Dec 2015 | 4:01 pm | 4 min. read

Proposed reforms to EU copyright laws will reduce the rights currently enjoyed by copyright holders, an expert has said.

The European Commission has outlined plans to change aspects of the EU's copyright framework (12-page / 508KB PDF), including standardising some areas of exceptions to copyright across the trading bloc and promoting voluntary industry agreements to address online copyright infringement.

The Commission has also published a draft regulation which, once finalised, would require online content service providers to ensure their content is available to subscribers to access when they are temporarily overseas, such as on holiday.

"In line with the draft proposals leaked earlier in the year, the Commission is driving forward its single market agenda by seeking to harmonise aspects of copyright law across the EU," said intellectual property law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com. "As anticipated, unlike the current implementation of the EU’s unitary patent, these reforms will not deliver an unitary ‘EU copyright’ but will instead seek to remove certain territorial restrictions and adapt copyright rules to cope with the realities of new technologies."

"While framed in terms of rewarding creativity and investment in creative content by offering a high level of protection, it is clear that the agenda is to give more rights to consumers which will inevitably mean fewer rights for the copyright holders. The proposals are sufficiently limited to stand a good chance of becoming law within a reasonable timeframe but what is really needed is a radical shake up of copyright, harmonising the law across Europe. With these limited reforms, such a proposal looks further away than ever," he said.

In its communication on modernising the EU copyright framework the Commission said it is considering bringing forward "legislative proposals" by spring 2016 to change rules on copyright exceptions to "allow for wider online access to works".

The Commission said those proposals could include allowing "public interest research organisations to carry out text and data mining (TDM) of content they have lawful access to, with full legal certainty, for scientific research purposes".

"The lack of a clear EU provision on TDM for scientific research purposes creates uncertainties in the research community," the Commission said. "This harms the EU’s competitiveness and scientific leadership at a time when research and innovation (R&I) activities within the EU must increasingly take place through cross-border and cross-discipline collaboration and on a larger scale, in response to the major societal challenges that R&I addresses."

Last year new rules on text and data mining were implemented in the UK as part of a raft of reforms to exceptions to copyright that were introduced.

The Commission could also use new legislative proposals to "provide clarity on the scope of the EU exception for ‘illustration for teaching’, and its application to digital uses and to online learning", it said.

Under existing copyright rules, EU countries are free to permit the use of copyright-protected material without the permission of rights holders "for the sole purpose of illustration for teaching", providing education bodies indicate the source of the material unless impossible to do so or such attribution is not "justified by the non-commercial purpose to be achieved".

New proposals could also support the digitisation of copyrighted material by "cultural heritage institutions", the Commission said, and also allow "works held in research and academic libraries and other relevant institutions" to be consulted remotely via "closed electronic networks" for research or private study purposes.

"The EU exception authorising libraries and other institutions to allow on-screen consultation of works for research and private study only applies to terminals on the libraries’ physical premises … does not take into account today’s technological possibilities for remote consultation," the Commission said.

The Commission said it could also look to clarify rules that already allow works of copyright that exist in public places, such as works of architecture or sculpture so as "to take into account new dissemination channels".

The Commission said it would also look at issues that concern private copying of copyrighted works. Some EU countries allow consumers to copy material they own onto different storage media, such as lift music from CDs and load them onto iPods, for their own personal use. This private copying exception is permitted under existing EU laws but is not accounted for in every EU country, including the UK.

The Commission has also threatened to legislate to help combat online copyright infringement. It said it will pursue self-regulatory agreements between industry groups and rights holders aimed at cutting off copyright infringers' access to revenues. It said it wants to agree such frameworks by spring 2016 but said the "codes of conduct" it hopes will be developed "could be backed by legislation, if required to ensure their full effectiveness".

In the UK, a new online copyright enforcement regime under the Digital Economy Act (DEA) was shelved last year after rights holders and internet service providers (ISPs) agreed a voluntarily framework for educating online copyright infringers about the harm of piracy. A further UK initiative, backed by the City of London Police's Intellectual Property Crime Unit, is aimed at ensuring adverts for major brands do not appear on copyright infringing websites.

The Commission said it also intends to tackle "commercial-scale infringements".

"The Commission will assess options and consider by autumn 2016 the need to amend the legal framework focussing on commercial-scale infringements, inter alia to clarify, as appropriate, the rules for identifying infringers, the application of provisional and precautionary measures and injunctions and their cross-border effect, the calculation and allocation of damages and legal costs," it said.

The Commission is already looking into notice and takedown policies and procedures as part of its consultation on the role of online platforms.