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.
"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?
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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?].
Enforcement
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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!
I do not understand what the problem is for one single copyright.
ReplyDeleteFor 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?
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
ReplyDeleteHenri le Sage.
ReplyDeleteI 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.
Andy
the 1709 Blog
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!
ReplyDelete