From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 9 December 2015

BREAKING: EU Commission unveils next steps for copyright reform, including draft content portability regulation

As anticipated yesterday, as a follow-up to the Digital Single Market Strategy (DSMS) released last May [here and here], this morning the EU Commission unveiled the next steps in its reform agenda.

Content portability

While DSMS is of course not just about IP, as far this area of the law is concerned today the Commission presented a proposal for a Regulation on the cross-border portability of online content services in the internal market.

As explained in the relevant press release

"At present, Europeans travelling within the EU may be cut off from online services providing films, sports broadcasts, music, e-books or games that they have paid for in their home country. Today's proposed Regulation on the cross-border portability of online content services addresses these restrictions in order to allow EU residents to travel with the digital content they have purchased or subscribed to at home. Cross-border portability, a new EU right for consumers, is expected to be a reality in 2017, the same year as the end of roaming charges in the EU".

This Kat has just had a quick glance at the proposed regulation and will get back with a more thorough analysis soon. However, there are two aspects that are perhaps interesting to observe already at this stage:

(1) the proposed Regulation would allow content portability to subscribers who are "temporarily present" in a Member State other than the one of their residence. However, the notion of temporality is defined nowhere in the draft Regulation: can a week be temporary enough for the sake of the Regulation, while a month would be too long?

(2) Recital 11 in the preamble to the proposed Regulation recalls that in its judgment in FAPL [here] the Court of Justice of the European Union (CJEU) held that "certain restrictions to the provision of services cannot be justified in light of the objective of protecting intellectual property rights". Fair enough, but why then would such restrictions need to be removed only for subscribers temporarily present in a Member State other than the one of their residence, and not for all subscribers present - whether temporarily or not - in a Member State other than their own?

Gigi and Milly will be finally able
to access their favourite content
also when on holiday
New Communication

In addition to the proposed regulation, today the Commission also released a new Communication - Towards a modern, more European copyright framework.

The content of this new document does not substantially diverge from a draft version which this blog discussed a few weeks ago]. Besides discussion around content portability, this new Communication announces that action will be taken in respect of the following areas.

Exceptions and limitations

Exceptions and limitations relevant for access to knowledge, education and research (including text and data mining) will be clarified and/or adjusted for the digital environment, with the objective of increasing their level of harmonisation.

Still in the area of exceptions and limitations, (1) the EU will take steps to implement the WIPO Marrakesh Treaty, and (2) ensure that differences in the levy systems of Member States do not raise barriers to the free movement of goods and services.

Exclusive rights, including an EU-wide ancillary right over news content?

In relation to exclusive rights, the Commission will examine whether clarification is needed as regards the notions of communication/making available to the public. In addition, the Commission will address "whether any action specific to news aggregators is needed, including intervening on rights" [so an EU-wide ancillary right, on the model of Germany or - even more worrisome - Spain?].


The soundtrack of
this copyright season
In the area of enforcement, the Commission 

"will take immediate action to engage, with all parties concerned, in setting up and applying ‘follow-the-money’ mechanisms, based on a self-regulatory approach, with the objective of reaching agreements by spring 2016. Codes of conduct at EU level could be backed by legislation, if required to ensure their full effectiveness. 
As regards the legal framework for the enforcement of intellectual property rights, including copyright, the Commission will assess options and consider by autumn 2016 the need to amend the legal framework focussing on commercial-scale infringements, inter alia to clarify, as appropriate, the rules for identifying infringers, the application of provisional and precautionary measures and injunctions and their cross-border effect, the calculation and allocation of damages and legal costs."

An EU-wide copyright title?

Finally, the Commission reserves the right to dream about full copyright harmonisation:

"The full harmonisation of copyright in the EU, in the form of a single copyright code and a single copyright title, would require substantial changes in the way our rules work today. Areas that have so far been left to the discretion of national legislators would have to be harmonised. Uniform application of the rules would call for a single copyright jurisdiction with its own tribunal, so that inconsistent case law does not lead to more fragmentation. These complexities cannot be a reason to relinquish this vision as a long-term target."


A more detailed analysis of today's developments will follow soon. Stay tuned!


Henri le Sage said...

I do not understand what the problem is for one single copyright.

For patents, we have been struggling with the translation requirements. And maintenance fees. Apart from that, all member states agreed more or less.

For trademarks and designs, it all appears to work to at least some extent.

So why would this be such a big problem to the Commission?

Wait, this is probably all about the content industry that is so afraid of pan-EU exhaustion and the divide and conquer principle.

Or am I just a far too simplistic patent attorney?

Barbara Cookson said...

I didn't think even Arnold J had dreamt of creating a copyright title that was directly applicable European law but I'm sure he could supervise a team of lawyers writing one

Andy said...

Henri le Sage.
I think part of the reason copyright is difficult is the way the largely French-led droit d'auteur approach and the Anglo-Saxon copyright have developed along different paths. Admittedly all the EU member states have signed up to certain overarching principles, as enshrined in the Berne Convention and various WIPO sponsored treaties, but these leave large margins of appreciation for the member states in those areas which the Commission has identified. Indeed the idea of portability of access rights is completely new in the context of international copyright. And of course there are immense commercial interests at stake (think of Sky's and the FAPL's battles with Mrs Murphy et al).
As with the challenges of deciding whose humour applies when deciding parody cases, the cultural differences across the whole of the EU present a formidable challenge to this kind of harmonisation, affecting as it does 'ordinary' people to a far greater extent than do patents, trade marks and designs which are IP rights principally associated with commerce and business users.

the 1709 Blog

Anonymous said...

The regulation intended only for those "temporarily present" in another state, presumably because they will have paid the licence fee at home. Those permanently resident abroad not only won't have paid that licence fee but are in fact not able to do so. Why not make it possible for anyone to pay for a TV licence for any country of their choice? Simples!

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