Google calls for copyright licensing of digital content in EU to be simplified

Out-Law News | 14 Apr 2014 | 2:27 pm | 3 min. read

Businesses should not have to pay multiple fees to use copyrighted material when they only engage in a "single act of exploitation", Google has said.

The internet giant said that it is wrong that businesses should have to pay separate royalties to cover each of the "multiple rights" protected by copyright when making single use of that material. 

It said that some digital works have been "blocked" from becoming widely available because of rights holder objections to either the reproduction, communication to the public, or making available of their works, and called for a simplification of copyright licensing in the EU to fix the problem. 

"We believe the [European] Commission should consider appropriate means of ensuring that rights that cover a single act of exploitation are licensed together," Google said in a response to the Commission's review of the EU copyright framework. "The lack of a single license for a single act of exploitation is an historical remnant, an attempt to use approaches to licensing analog products for digital ones." 

Google pointed to the licensing of digital music which it said is "structured by right holders as if a digital act of exploitation is a mixture of pressing a compact disc implicating the mechanical reproduction right and broadcasting implicating the performing rights/communication to the public right". It said that the approach was not in keeping with the digital age. 

"Since both the reproduction and performing rights are needed there is a significant problem: each right in isolation is without economic value. Having them separate is the equivalent [of] forcing buyers to acquire single gloves separately," it said. "Ideally, the same licensor (either the right holder or a collecting society) should be capable of granting pan-European rights for categories of digital exploitation without separating digital mechanical rights and digital performing rights."

 Google said that there was "a lack of sufficient clarity" over the scope of the 'making available right' under EU copyright laws. It said that the right "frequently overlaps with other economic rights". This can cause companies to "be charged for multiple rights: reproduction, communication to the public, and making available" and "may result in multiple payments or an inability to license, and further leads to fragmentation and underserved markets".

The company said it "does not make sense" to distinguish between rights "where there is a single act of exploitation". 

"In territories where different collecting societies administer each right, each society wants to be paid for the same activity by claiming that separate rights are implicated, including rights that have no independent economic value," Google said. "A collecting society in charge of managing the right of making available might claim royalties for the act of simply loading files to a server connected to the internet, even if no one ever accesses those files." 

"A collecting society in charge of managing the communication to the public would claim royalties for the act of transmission, while a third would do the same for the reproduction right even in the absence of downloads because temporary copies are made as a necessary adjunct of the transmission. At the age of digital exploitation of works, there should be a unique exploitation right rather than several layers, in particular the unclear 'making available right' layer," the company added. 

In its response to the Commission's review, the European Copyright Society (ECS), a think tank made up of academics and scholars, also gave its backing to changes to copyright licensing in a digital setting within the EU. It said that businesses seeking to make copyrighted material available online should be said to have implied permission to reproduce the content if granted separate permission to make those works available online.

"In the digital environment, the act of making available will often constitute the centre of gravity of the use of copyrighted material," the ECS said. "A work’s appearance on the internet – its availability for the community of internet users – is the decisive factor in the equation. Acts of reproduction necessary to arrive at this making available in the digital environment may have little or no independent economic significance in comparison with the act of making available (even when they are more substantial than acts of temporary copying exempted under ... the Information Society Directive)." 

"Therefore, it may be considered to let the act of making available prevail and qualify rights clearance in respect of the making available right as sufficient also with regard to preparatory acts of reproduction. For instance, if the ultimate purpose of the digitization of cultural material is the making available of that material for Internet users, a licence covering this act of making available may be understood to implicitly include the preceding act of reproduction necessary for the digitisation of the work, as well as copies inherent to the downloading of the works," it said. 

The European Commission is expected to announce later this year what action, if any, it plans to change EU copyright laws and improve cross-border licensing. Proposed changes to UK copyright laws are currently subject to scrutiny by parliament.