The European Commission (the Commission) has published a report on the responses to its consultation on the review of EU copyright rules (the report).
In December 2013, the Commission consulted on EU copyright law, in particular on improving the cross-border licensing of copyright, the nature and scope of rights in digital content, and the limitations and exceptions to copyright (www.practicallaw.com/9-555-4646).
In Nils Svensson and Others v Retriever Sverige AB, the European Court of Justice’s decision was unclear as to whether a person providing a link needed to check whether the website linked to had permission to make the content available to the public (see News brief,“Linking and framing copyright material: guidance at last”, www.practicallaw.com/4-558-3665).
The report includes responses from end users, consumers and institutional users of copyright (consumers) and from authors, performers, publishers, producers, broadcasters and collective management organisations (copyright owners). These responses include the following:
Many consumers reported problems when trying to access online services in another EU member state. Institutional users generally considered that territoriality of copyright created problems. However, copyright owners pointed out that multi-territorial licences are available in the book, image and music sectors.
Most consumers considered that linking and browsing in relation to copyright works should not require authorisation from the copyright owner. Most copyright owners believed that the provision of a link to publicly available content should be subject to authorisation, at least in some cases.
Consumers complained of restrictions when trying to resell digital files that they had bought. However, copyright owners considered that a legal framework enabling the resale of digital content would have serious negative consequences for the market by undermining investment in copyright content.
Most consumers supported the idea of a copyright registration system. This would facilitate licensing, reduce transaction costs and increase legal certainty. Service providers were also sympathetic. However, most copyright owners were against the idea, which they considered would be costly, complicated, unnecessary and burdensome. Member states were against the idea of a voluntary system of registration.
Views were divided on the territoriality of exceptions in the single market. Consumers stated that the current position created problems, while copyright owners felt that it did not.
Consumers were generally unsatisfied with the research exemption, reporting problems accessing academic articles. However, copyright owners were generally uncritical of the current arrangements.
Consumers and copyright owners had different views on private copying. Many member states were in favour of some further harmonisation, although their views on the scale of intervention varied; for example, there were mixed views on whether a mandatory levy system should be introduced.
Consumers generally agreed that there should be adequate remuneration for authors and perfomers. Authors and performers reported problems with the imposition of contractual terms and complained about weak bargaining positions. However, most publishers, producers and broadcasters believed that authors and performers were appropriately remunerated. They considered it was an area that should be subject to market forces so that contractual freedom was ensured.
Consumers felt that the current civil enforcement framework was biased towards copyright owners. However, copyright owners complained that the current enforcement system was failing to provide the necessary protection in the modern digital environment against websites that rapidly posted unauthorised content. There were mixed responses about the value of introducing a commercial purpose provision.
Consumers were generally in favour of the idea of a single EU copyright title to enable the establishment of a genuine digital single market for online content. It would also enhance legal certainty and transparency, reduce transaction and licensing costs, and prevent copyright owners from using territory-by-territory licensing to seek extra revenues. However, most copyright owners did not support this idea. Member states considered that a single EU title was premature given its potential complexity, and that it should not be pursued in the short term. The same objectives could be achieved through greater harmonisation.
Progress on harmonisation is likely to be slow because views on copyright reform continue to be polarised between users and copyright owners. According to the report, there is little support among member states for fundamental reform. As a result, changes to EU copyright rules, when they occur, are likely to be more in the form of points of detail.
Source: European Commission, Report on the responses to the Public Consultation on the Review of the EU Copyright Rules, 23 July 2014, http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/docs/contributions/consultation-report_en.pdf.
First published in the September 2014 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.