09 December 2015

European Commission announces plans on content portability and wider copyright reform

This article was written by Josephine Curry, Associate

As part of its ongoing Digital Single Market project, the European Commission has today announced specific proposals relating to content portability, as well as its vision for wider modernisation of European copyright rules.

Content Portability

At present, consumers who have paid for or otherwise legally accessed online content in one EU member state may not be able to access it elsewhere in the EU due to territorial restrictions put in place by content providers. The Commission has identified this as a problem for the Digital Single Market, particularly in light of the continuing growth of digital content and the fact that cross-border portability is considered an attractive feature of online content services by consumers.

The Commission has therefore proposed a new Regulation (accompanied by an Impact Assessment) on the cross-border portability of online services which, broadly speaking, will mean people will be able to access their content when they are ‘temporarily’ abroad in another EU member state. It has identified the aims of the measures as being to: (1) allow a better circulation of content, (2) offer more choice to European consumers (3) strengthen cultural diversity and (4) provide more opportunities for the creative sector.

These measures will no doubt be welcomed by consumers and are a step forward in the Commission's plans to remove barriers hampering access to its vision of a digital single market. However, the content portability proposals are fairly limited in effect, since they only apply to those 'temporarily present' in another EU Member State and not wider geo-blocking practices. The Commission has characterised the issue as ‘a question separate from the discussion on cross-border access by consumers to online content...available in Member States other than their own’, saying the two issues need to be addressed separately.

It is also notable that the draft Regulation does not define 'temporarily present' other than to say that it means 'that a subscriber is present in a Member State other than his or her Member State of residence'. This begs the question as to how long an individual must be in another EU Member State before their presence is no longer 'temporary'.

The proposed Regulation is expected to come into force in 2017 (the same year as the proposals to end roaming charges in the EU are scheduled to take effect).

Upcoming Copyright Reforms

The Commission has also slated a wider action plan to modernise European copyright rules in the new Communication released today. They include plans to:

  • Enhance cross-border distribution of television and radio programmes online, which will be announced in the context of the ongoing review of the Satellite and Cable Directive.
  • Propose legislation to implement the Marrakesh Treaty, the effect of which will be a new mandatory exception facilitating cross-border dissemination of special format printed works produced for people with disabilities.
  • Consider proposals on further copyright exceptions, including to allow public interest research organisations to carry out text and data mining of content they have lawful access to, for research purposes. The Commission is also expected to consider how to clarify the current copyright exception permitting the use of works permanently located in public spaces (the so-called ‘panorama exception’).
  • Examine whether action is needed on the definition of the ‘communication to the public’ and ‘making available’ rights.
  • Consider changes to the system governing remunerations of authors and performers which will increase ‘legal certainty, transparency and balance’.
  • Take ‘immediate action’ to engage with relevant stakeholders to set up a ‘follow-the-money’ approach to online enforcement (i.e. engaging various intermediaries, such as payment services providers, to tackle online copyright infringement by cutting off infringers’ revenue streams).
  • Consider the need to amend the legal framework focussing on commercial-scale infringements (including to clarify rules for identifying infringers, the application of interim measures such as injunctions and their cross-border effect, and the calculation of damages and legal costs). This is slated to take place by Autumn 2016.

Of these, the most controversial is likely to be the consideration of the ‘communication to the public' and ‘making available' rights. In particular, the Commission has indicated that it will consider whether any action specific to news aggregators is needed, including 'intervening on rights'. This suggests that the Commission is considering introducing a so-called 'ancillary right’ aimed at preventing news aggregators and search engines hyperlinking freely to articles and other online news content. The announcement has already attracted criticism from those who see this as undermining the general position set out by the Court of Justice in Svensson (see our bulletin here) that hyperlinking to a copyright work that is freely available online will not usually require the authorisation of the copyright owner. In particular, Pirate Party MEP Julia Reda (whose report on EU copyright reform was approved in amended form by the European Parliament earlier this year) has characterised the proposals as ‘a full frontal attack on the hyperlink'.

More broadly, the Commission has recognised in its Communication that the measures it has announced amount to incremental change, and that full harmonisation of EU copyright law would require much more substantial changes. However, it has stated that the complexities involved are not a reason to ‘relinquish this vision as a long-term target’ – meaning that full harmonisation may still be on the (distant) horizon.

The proposals set out in the Communication will form the basis of legislative proposals and policy initiatives which are expected to be announced in the next six months. 

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