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Wednesday, 31 August 2016

SUPER KAT-EXCLUSIVE: Here's draft Directive on copyright in the Digital Single Market

Further to the leaked draft version of the Commission Staff Working Document - Impact Assessment on the modernisation of EU copyright rules, here's a new leak from Brussels!

It is the draft version of the forthcoming [it should be presented next month as part of the second copyright package] Directive on copyright in the Digital Single Market.

Taking into account digital and cross-border uses of copyright content, this new piece of legislation will change the copyright acquis

More specifically, it will: introduce new exceptions and limitations, facilitate licences, and set rules aimed at ensuring a well-functioning marketplace for the exploitation of works and other subject-matter [translated: address the so called 'value gap'].

Mandatory exceptions (without freedom of panorama?)

Contrary to the general structure of Article 5 of the InfoSoc Directive which - with the exception of temporary copies in Article 5(1) - provides an optional list of exceptions and limitations that Member States are free to implement into their own legal system, the new directive [if adopted in its current form, ├ža va sans dire] mandates upon Member States to adopt the following exceptions or limitations:
  • [Article 3] Text and data mining for the benefit of research organisations [so, the beneficiaries are limited] in relation to works or other subject-matter to which they have lawful access for the purposes of scientific research [interestingly, the exception cannot be overridden by contract and is not limited to non-commercial uses]
  • [Article 4] Teaching on the premises of an educational establishment or through secure electronic network only accessible to staff and students, as long as the source is acknowledged and is for non-commercial purposes [but note that Member States can provide that exception does NOT apply if an adequate licence is easily available on the market] 
  • [Article 5] Preservation of cultural heritage [this is not really surprising, and in my opinion it already followed from the decision of the Court of Justice of the European Union in Ulmer, C-117/13]
Interestingly, despite everything [including a public consultation], it seems that freedom of panorama will not be part of the directive.

Out-of-commerce works

Title III of the draft directive is devoted to use of this type of works by cultural heritage institutions through a collective management mechanism. 

In other words, when a collective management organisation concludes a non-exclusive licence for non-commercial purposes with a cultural heritage institution, such a licence may be extended or presumed to apply to rightholders of the same category as those covered by the licence who are not represented by the collective management organisation, provided that a number of conditions are satisfied [whether this is actually OK is uncertain, especially further the Advocate General Opinion in the pending Soulier reference]

Rights in publications

Here it is: the much feared and criticised 'ancillary copyright'. 

Draft Article 11 introduces in fact a right for publishers of news publications to authorise the online use [reproduction and marking available] of their news publications. 

This new sui generis right is due to last for 20 years from the date of publication or the relevant news publication.

Value gap

Draft Article 13 [see also Recital 39] addresses the so called 'value gap' by requiring intermediaries that store and provide access to large amounts of works uploaded by users of their services to "take appropriate and proportionate measures to ensure the functioning of agreements concluded with rightholders and to prevent the availability on their services of works or other subject-matter not covered by such agreements, including through the use of effective content identification technologies" [translated: intermediaries need to become licensed and implement filtering technologies. Mmm: how can this be achieved without also reforming Article 3 of the InfoSoc Directive (see here), and Articles 14 and 15 of the Ecommerce Directive?]

Fair remuneration for authors and performers

Articles 14 and 15 implement a mechanism by which Member States will be required to ensure that authors and performers are entitled to have their contract adjusted when the agree remuneration is disproportionately low compared to the subsequent revenues and benefits derived from the exploitation of the works or performances" 

***

The text of the draft Directive is available here.

6 comments:

Anonymous said...

Wouldn't the value gap article close the market for new players in the 'upload sector'? Filtering technologies are possible for Youtube, but likely not for a starting competitor.

Anonymous said...

Thanks a lot! The Google Drive link seems to be broken through. Could you please fix the upload? Cheers

Eleonora Rosati said...

@Anonymous at 14:22: Possibly. In any case, ContentID is a voluntary measure (and costly technology), not a mandatory one, that YouTube has decided to adopt.

@Anonymous at 14:31: Try this https://drive.google.com/file/d/0B6d07lh0nNGNNjZpcGlsQ3pJN3M/view?usp=sharing

Anonymous said...

the contract adjustment mechanism seems very skimpy in outline and less than a termination or recpature right as under the US Copyright Act of 1976 or the UK Copyright Act of 1911, but still gives authors a second bite at the cherry - but what about their heirs - is is a right which can only be claimed by the living author or performer? and does the burden fall on the original assignee/licensee or its successors?

Federico said...

Thank you. I've read all the WHEREAS and it's sickening... Feels like the offices writing these texts are full of zombies.

BL said...

I love the question about how this is possible without reforming the liability exemptions contained in the E-commerce Directive. In my opinion the proposal seems a clear attempt to bypass arts. 14 and 15. I believe there are two issues here:
i) "Prevent the availability on their services of works or other subject-matter [any idea what they are referring to with "other subject-matter"? database sui-generis rights?] not covered by such agreements contradicts the lack of obligation to monitor, which applies horizontally regardless the matter;
ii) The tricky bit here, though, is that the new proposal seems to introduce an obligation towards enforcing third party agreements (licenses), which is completely crazy, as the ISP is not part of that agreement! (I mean, now it would be, by law). This aspect makes no sense from a contractual point of view, as it will lead to the ISP obliged to interpret contractual clauses, which seems burdensome and out of the scope of what a IT company should be investing in.

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