IP and IT Law Bytes: Trade secrets: Draft directive



The European Commission (the Commission) is consulting on EU copyright law, focusing on improving the cross-border licensing of copyright, the nature and scope of rights in digital content, and the limitations and exceptions to copyright (the consultation).


The consultation considers the nature, scope and extent of copyright, copyright limitations and exceptions, private copying and reprography, fair remuneration of authors and performers, respect for rights, and  a single EU copyright title. Key areas under discussion include the following:

  • The lack of cross-border portability of online services, the availability of multi-territorial licences, and reasons for refusing to grant them.
  • Uncertainty about what rights need to be licensed to allow digital transmission of content; for example, the provision of hyperlinks to copyright works, the viewing of webpages containing copyright content, and preventing the resale of "download to own" digital content.
  • Whether it would be helpful to introduce an EU copyright register.
  • Whether there should be interoperability of rights databases; for example, among collecting societies.
  • Whether the current term of copyright (expiring 70 years after the death of the author) is still appropriate in the digital environment.
  • Whether there should be greater harmonisation of the current limitations on, and exceptions to, copyright including in relation to user-generated content, in particular the re-use and adaption of existing works via social media and other interactive websites.

  • Whether to make the copying of purchased digital content by end-users subject to the payment of levies for private copying.
  • The significant differences in the laws of EU member states governing the transfers of rights from authors and performers to producers, and ownership of rights when a work is created by an employee, and concerns that authors and performers do not receive adequate remuneration, particularly in relation to online exploitation.
  • Whether civil proceedings for infringement of copyright should be streamlined for cases where the infringing acts are committed with a commercial purpose.
  • How the legal framework can be changed to foster the co-operation of intermediaries such as internet service providers, advertising brokers, payment service providers and domain name registrars.
  • Whether the current system for civil enforcement strikes the right balance between copyright protection and human rights.

The Commission also asks for views on the idea of complete harmonisation of copyright law throughout the EU and the introduction of a central copyright register.


As the consultation raises the issue of whether either internet browsing or the provision of hyperlinks to copyright content can constitute infringing acts, the Commission will also need to take into account the outcome of several pending references to the European Court of Justice (ECJ) on these questions.

For example, Svensson v Retriever Sverige AB (C-466/12) and C More Entertainment AB v Sandberg (C-279/13) are references pending from the Swedish courts to the ECJ on hyperlinking (C-466/12; C-279/13). BestWater International GmbH v Mebes is a reference pending from Germany on infringement by the framing of a copyright work within a website (C-348/13). There is also a reference pending from the Meltwater case in relation to infringement by internet browsing (Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd and others; see News brief “Meltwater and digital copyright: where do we stand?”, www.practicallaw.com/2-535-1807).

Source: European Commission consultation on review of EU copyright rules, 6 December 2013, http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm. Comments are requested by 5 March 2014.

First published in the January/February 2014 issue of PLC Magazine and reproduced with the kind permission of the publishers.  Subscription enquiries 020 7202 1200.