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Monday, 19 January 2015

BREAKING NEWS: Pirate Party MEP Julia Reda proposes major overhaul of EU copyright

Julia Reda
As copyright-oriented IPKat folks will be aware of, this year promises to be an interesting one at the EU level. Not only because of the ever-active Court of Justice of the European Union (CJEU) [see here and here so far], but also because the new Commission intends to table proposals to reform the current acquis. Indeed a few days ago G√ľnther Oettinger, EU Commissioner for Digital Economy and Society, once again made clear (once again, on Twitter), that having “modern copyright rules” is one of the key goals for 2015.

What “modern” means is still not so clear, nor is [but see here] what legal instruments will be adopted – a directive? soft law instruments like recommendations or a White Paper?

In all this, also the European Parliament intends to contribute to the debate and likely reform action. To this end it appointed Pirate Party MEP, Julia Reda, to produce a report on the implementation on the InfoSoc Directive. The final version of this report will be subject to a vote in the Legal Affairs Committee on 16 April 2015 first, and then the entire Parliament on 20 May 2015 [so, mark your diaries!].

Ms Reda has already presented her plans on EU copyright reform during a meeting of the Legal Affairs Committee. What is new is that this morning she released a first draft of the report [press release here], that will be discussed tomorrow before the said Committee [interest group Copyright4Creativity has also just released a Manifesto on EU copyright reform: see here].

Ms Reda’s report, which acknowledges the responses to the recent Public Consultation [here and here], addresses issues pertaining to both exclusive rights and related exceptions and limitations, and does so by proposing significant changes to the current legislative landscape.

This Kat notes that, if nothing else, following years of vague statements and blunt official documents, it is kind of refreshing to see that what is proposed sounds major. But will it be also feasible, wonders Merpel? And, in the first place, do we actually need it?

Bruno pictured while
(clearly) thinking
of EU copyright reform
Copyright and freedom of expression

The first interesting thing in this Kat’s opinion is the stress that the report places [recitals C to E] on the human rights dimension of the legal framework on copyright and related rights. Copyright is protected under Article 17(2) of the Charter of Fundamental Rights of the European Union, but the same Charter also protects freedom of expression within Article 11. The interplay between such fundamental rights has already been at the centre of judicial analysis, at the levels of both the CJEU [let’s just think of the recent decisions in Luksan, here, and Telekabel, here] and the European Court of Human Rights [the latter with regard to the European Convention on Human Rights: see for instance, the Ashby Donald, here, and Pirate Bay, here, cases].

Any reform of the acquis will have to address the relationship between these concurrent – not necessarily competing in this Kat’s opinion - rights, also because something has happened following the adoption of the InfoSoc Directive in 2001: in 2007 the Lisbon Reform Treaty placed in fact the Charter on the same hierarchical level of the Treaties.

Exclusive rights: contract law, EU-wide copyright title, duration

With regard to this issue, there are three recommendations that probably stand out.

The first [at 3] is for the Commission to consider the role that contract law plays in defining the actual relationship between different categories of righholders. In this respect, the draft report “calls for improvements to the contractual position of authors and performers in relation to other rightholders and intermediaries[the so called fair remuneration issue]. This Kat notes that also the previous Commission had started looking into this issue, notably in the leaked draft Impact Assessment [here]. It will be interesting to see if there is any follow-up to this within the current Commission’s term of office.

The second [at 4] was also mentioned in the draft Impact Assessment and has recently found the active support of the European Copyright Society. It is full harmonisation of copyright, by using Article 118 of the Treaty on the Functioning of the European Union as the legal basis for the adoption of an EU copyright regulation. This would be “in compliance with the Commission’s objective of better regulation, as a legal means to remedy the lack of harmonisation resulting from [the InfoSoc] Directive.”

Finally, the draft report proposes to reduce the term of protection from 70 to 50 years after the death of the author, in compliance with Article 7 of the Berne Convention. Personally this Kat would bet that this proposal would not go too far, also considering that the current trend at the level of free trade agreements (FTA), eg the still mysterious Trans-Pacific Partnership or – outside of an EU context - the FTA between US and South Korea, appears to be to set firmly the duration of copyright at (to say the least) life+70.

.... including EU copyright heaven?
Exceptions and limitations: certain scope and mandatory character, EU-style fair use

With regard to this topic, the draft report “views with concern the increasing impact of differences among Member States in the implementation of exceptions[at 10]. While this is what has actually happened in practice on account of an alleged flexibility of Article 5 of the InfoSoc Directive, probably this is not what the directive actually allowed Member States to do, as the CJEU has made clear in a number of recent judgments, including ACI Adam [here] and Deckmyn [here and here; on the topic of (in)flexibilities under EU copyright, you can take a look at these Kat-journal articles here and here].

In addition, the draft report proposes two major changes to the current structure of Article 5 of the InfoSoc Directive, ie:

·        To make it mandatory for Member States to implement all exceptions and limitations listed there into their own national regimes. This would “allow equal access to cultural diversity across borders within the internal market and to improve legal security[at 11];
·        To adopt an “open norm introducing flexibility in the interpretation of exceptions and limitations in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author or rightholder[at 13; this bit of the draft report may require some clarification, though this Kat reads it as mandating upon Member States the introduction of the language of the three-step test into their own national laws, so to have an EU-style fair use doctrine in a fashion similar to what was proposed here].

Other proposals relate to:
·        Quotation for audiovisual works [at 14];
·        Hyperlinking [at 15];
·        Freedom of panorama [at 16; on the lack of such freedom under some national laws much has been written: see for instance here and here];
·        Caricature, parody and pastiche [at 17];
·        Text and data mining [at 18];
·        Research and education [at 19];
·        E-lending [at 20, currently subject to a reference for a preliminary ruling to the CJEU];
·        Compensation and levies, including notion of ‘harm’ [at 21 and 22];
·        Technological protection measures and their circumvention [at 23 and 24].
Courtesy message
from the CJEU

What’s next?

What will happen now is explained here: amendments to the report can be proposed until 17 February, and will then be discussed on 23 and 24 February in the Legal Affairs Committee.


If you think that all this is too far away in time and you may feel lonely in the meantime, don’t worry! On Thursday the CJEU will relieve you from solitude, by delivering not one, but two new judgments, ie Art&Allposters [here, right of adaptation, and exhaustion of the distribution right under the InfoSoc Directive], and Hejduk [here, jurisdiction in online copyright infringement cases]. Till Thursday then!

16 comments:

Anonymous said...

There appears to be no explanation in Ms. Reda's report for the need for point 24,

"Recommends making legal protection against the circumvention of any effective
technological measures conditional upon the publication of the source code or the
interface specification, in order to secure the integrity of devices on which technological
protections are employed and to ease interoperability; in particular, when the
circumvention of technological measures is allowed, technological means to achieve such
authorised circumvention must be available."

This measure does not seem to serve any purpose other than allowing illegal circumvention of technological measures to prevent copying.

Anonymous said...

I don't know about the TTP, but there's a bit about copyright in material released by the Commission earlier this month on the TTIP (see http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153020.7%20IPR,%20GIs.pdf). The main link to all docs is http://www.eubusiness.com/regions/usa/ttip-texts-2/ttip-texts

Anonymous said...

First anonymous: this recommendation exists to handle several scenarios where technological prevention measures interfere with permitted uses of a work.

Firstly, imagine a situation in which a) exceptions exist to the principle that a certain activity with regard to a protected work is an infringement of a rightsholder's right (e.g. reporting on current events); b) the rightsholder implements a technological protection measure to prevent or restrict that activity in general, regardless of whether any exception applies in a particular circumstance (e.g. an encryption system); and c) the circumvention of technological protection measures is an offence. Under these circumstances, although the exception theoretically exists, it cannot be practically used.

An alternative scenario has the alternative c) the technological protection measure is legal to overcome under certain exceptions, but the technological protection measure is sufficiently sophisticated that it cannot practically be overcome, e.g. it involves near-military-grade encryption. Again, under these circumstances, although the exception theoretically exists, and although it would even be legal to circumvent the measure, the exception cannot be practically used.

A final alternative scenario has the alternative c) the implementation of the technological protection measure involves a service which may be disrupted or unavailable (e.g. server authorisation) or a device which may become obsolete or unavailable (a dongle, a chip). Under these circumstances, a person who, whether through license or using an exception, has the right to perform a particular act in connection with the work, cannot practically do so.

Making the source code or specification for such technological protection measures available would allow those who seek to use the work as permitted by law practically to do so.

Anonymous said...

@12:43

If I do not wish someone to copy the information I provide and encrypt it in a manner according to my choosing, the state should not have the power to enforce me to do so. Just because an act is not illegal does not mean I have the absolute right to perform that act.
Should I as a producer of protected content, for example copy protected movies, be required to divulge the source code relating to that protection, there will be people who would make available anti-encryption tools even if their use is illegal.

On balance, I see no need for controls to be introduced here.

Pierre said...

I think the keypoint of "modern copyright use" is rather to open the gate of knowledge without siphon off creativity's protection.
Thus, I would strictly limit the protection of IP to 20 years from 1st publication/creation but leave a protection of 50 (or even 70) years after death on derived works.
It would lift off lots of uncertainty and foster creativity.

Anonymous said...

First Anonymous - You may not see a need for controls, but fortunately more than one voice can be heard in democratic debate. I must say, I don't necessarily agree with the measure proposed, but I was addressing your point that the measure did not seem to serve a purpose. You may or may not like the purpose, but purpose there is aplenty.

Andrew Robinson said...

I'm surprised to see so many comments about point 24. How else do the objectors think the EU can meet their existing obligations under Article 7 of the treaty of Marrakesh?

Anonymous said...

I would posit that "need" and controls should be replaced with a discussion of legality of such controls.

Let's face it: the only purpose of the controls is to STOP an action that may in fact be legal and justified - and this stoppage is not done in direct relation to an actual act of illegality, but is universally applied at the onset.

There simply is no other bottom line takeaway.

The problem that the vendors of digital information have is that even a single uncontrolled copy of a digital item can eviscerate (or at the least cause serious financial damage) to an old style business model. The problem is the business model and not the selective rights that exist to copy ANY work (for particular reasons).

The problem is that those facing the problem of perfect digital replication is that the rights' holders are engaging in self-help activity (and in certain cases, this self-help is augmented with criminal penalties) that denies - at the onset - rights that the public already have.

There need not be any argument made as to any "absolute right" for this denial of ALL rights position to be seen as inappropriate.

I suggest then that the very nature of our "brand new" digital world must invoke a different discussion. I suggest that if the public has existing rights, then those existing rights cannot be sacrificed at the alter of preserving a particular business model that flourished in the pre-digital world.

On the other hand, if we are sacrificing those rights, we should be upfront - and clear - about it and simply and directly remove those rights instead of trying to concoct and ultimately unworkable amalgam.

Lastly, with the coming advent of 3D printers (and a projected exponential growth of just what - and where - and by whom - can be printed), I would daresay that copyright infringement can be easily matched with patent infringement and thus more than one flavor of intellectual property right is in the cross hairs of evolution.

Anonymous said...

Not related to copyright, but to general IP and the evolution effect, a long but well-thought-out piece is available at:

http://www.ipwatchdog.com/2015/01/19/a-global-ip-system-at-the-crossroads/

Nit picker said...

I have been wondering for a few months now, why are almost half the posts about copy right "BREAKING NEWS"? I like the understated British style better.

Anonymous said...

Perhaps of interest that Reda is asking for paragraph-by-paragraph comments on her proposals, at

https://www.discuto.io/consultation/6240

Eleonora Rosati said...

@Nit picker: Thanks for your comment. Besides the fact that I am not British, the reason why there have been 'Breaking News' items is because the posts were released a few minutes or - in some cases - hours after the actual piece of news was also released. For instance, my post on Julia Reda's draft report was published shortly after the actual draft report was also made available.

ex-examiner said...

A difference between Copyright and Patent infringement (under UK law) is that action for copyright infringement can be taken against a private individual for copying a copyright-protected work for personal use, whereas no action for patent infringement can be taken against a private individual for private non-commercial acts that would constitute infringement if carried out commercially.

Anonymous said...

Interesting post ex-examiner.

Here in the States, there is not such a personal exemption - but there are a number of similar exemptions, such as an exemption to see if the invention works (the experimental exemption), for idle speculation, BUT any other use - commercial or merely for private benefit are still considered infringement.

Federico said...

The breaking news aspect is very appreciated. Not only the best summary around, but also the most timely!

Eleonora Rosati said...

@Federico: grazie!

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