SUPER KAT-EXCLUSIVE: here's Commission's draft White Paper on EU copyright

Merpel proudly showing her paws

Super-breaking news! Thanks to a great Katfriend, this Kat and Merpel have just placed their feline paws on an internal draft of the White Paper on "A Copyright Policy for Creativity and Innovation in the European Union". 

This is the document that Commissioner Michel Barnier announced for release before the summer break, following the conclusion of the Public Consultation on the Review of EU Copyright Rules [here and here] and, before that, Licences for Europe [here]. 

The purpose of the White paper "is to examine whether and how further action on the current system of rights, their licensing and exercise, the exceptions to rights and their enforcement is warranted at EU level."

The issues covered in the White Paper refer to three main objectives: (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.

However, the level of maturity of the issues treated and the availability of evidence for specific policy options vary significantly. The proposed next steps thus take these differences into account.

Classic Kat-drama:
why can't you watch MasterChef Italia
outside Italy?

Cross border dissemination of creative content in the single market

An option could be to further define the act of making available on the internet. According to the Commission, this could reduce the transaction costs of licensing in the single market but could prove insufficient alone. 

This is why, with a view to making sure that consumers have access to online content services across borders, addressing restrictions resulting from purely contractual arrangements could also be envisaged [well said, but isn't this something that should have happened already following the decision of the Court of Justice of the European Union (CJEU) in FAPL?].

Acting on the definition and exercise of rights, as alternatives or in combination, could therefore be considered, together with monitoring the implementation of the pledges of Licences for Europe relating to cross-border access and content portability.

Digital exhaustion

According to the Commission, policy initiatives in this area appear premature [alas, as this is something on which the EU could have really taken a lead, considering that a similar discussion is currently being undertaken also in the US].

Hyperlinking and browsing

Following CJEU decisions in Svensson and PRCA, things may appear clearer, but the Commission calls for clarity in this area, also in respect of the concepts of reproduction and communication to the public in digital networks.

Helping knowledge and heritage institutions to fulfil their public interest objectives

The Commission could consider targeted and differentiated actions in this area. To maximise the purpose of the preservation exception within Article 5(2)(c) of the InfoSoc Directive, it could consider clarifying that it applies to all types of preservation copies and all types of works and other protected subject-matter. Equally, updating the consultation exception within Article 5(3)(n) of the InfoSoc Directive [currently at the

Speaking of e-lending? Premature!

centre of the pending reference in Case C-117/13 Technische Universität Darmstadt] could be considered, to allow specific categories of establishments to provide remote consultation to researchers and enrolled students under certain conditions.

A legislative initiative on e-lending seems on the contrary premature.

Education and research, including text and data mining

The Commission could consider further harmonisation of the teaching exception within Article 5(3)(a) of the InfoSoc Directive, including making it a self-standing one [it is currently included in the broader exception that also covers research].

The scope of the current research exception as well as its level of flexibility would need to be further considered. 

In addition, it seems important to clarify the legal framework for text and data mining [the UK has just adopted a specific exception, on belief that the research exception in the InfoSoc Directive would allow such national initiative]. The Commission could also consider the merits of a self-standing exception for text and data mining.

Disabilities

The exception within Article 5(3)(b) of the infoSoc directive might be harmonised further to ensure the smooth application of the Marrakesh Treaty, and ensure the cross-border effects of an EU exception to a broader circle of beneficiaries, in particular persons with a hearing impairment.

UGC remains an Obsession,
but will not be addressed

User-generated content

Just a few minutes ago the IPKat launched a poll on this, which has already proved very timely since the Commission does not appear too keen on having a specific exception for user-generated content (UGC).

Instead, it believes that a combination of different tools could be considered in order to reduce possible grey areas surrounding UGC, including clarifying the application of existing exceptions and limitations and envisaging a licensing mechanism for uses that do not fall within current framework.

Private copying

Here the Commission is mainly concerned with disparities in levy systems, that should be further harmonised.

Identifiers and formalities

Solutions for the identification of works and efficient data management should be delivered by rightholders and distributors in the first place.

The creation of a registration system at the EU level raises important practical and legal questions that require further analysis.

Fair remuneration of authors and performers

Formalities? Not here

The Commission believes that systems ensuring fair remuneration are important but whether to adopt a legislative solution or not is yet to be seen.

Solutions for mass digitisation

Contractual and sector-specific measures could be developed. But, again, no legislative action is foreseen in the short term.

Civil enforcement

According to the Commission [that will release two communications on this on 1 July], a number of policy considerations should be explored further, including clarifying what intermediaries can be involved and how, and focusing on the 'follow the money' approach.

***

In a nutshell

There is really not much that can be considered shocking in the draft White Paper. From a first reading, this Kat actually thinks that it is not very ambitious, and pretty much aimed at the preservation of the status quo. Quoting from Beckett, also here "The sun shone, having no alternative, on the nothing new."

What will happen now?

Not much, since any policy decisions should be considered during the upcoming 2014-2019 legislative period.