New EU Copyright Proposal

10th December 2015 by Maura McHugh

In relation to its Digital Single Market strategy, the European Commission delivered today a proposal to allow Europeans to travel with their online content and an action plan to modernise EU copyright rules.

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 (press release). Since it is a proposal for a Regulation, once adopted it will be directly applicable in all 28 EU Member States.

In addition, the Commission today outlines its vision of a modern EU copyright framework. This “political preview” will be translated into legislative proposals and policy initiatives in the next six months, taking into account all inputs from several public consultations.

The SAA, FERA, and FSE have broadly welcomed the European Commission’s commitment to go beyond political declarations and take action on authors’ remuneration.

They said:

In addition to action on authors’ remuneration, the Commission’s communication Towards a modern, more European copyright framework rightly identifies other areas where it can make a difference:

  • Effective enforcement: tackling commercial-scale piracy, which discourages new businesses based on the online exploitation of protected works that are essential to the development of the European online content market;
  • Fostering accessibility, availability and circulation of European works through a range of measures using the review of the Satellite and Cable Directive, the Creative Europe programme and, although not mentioned in the Communication, the Audiovisual Media Services Directive review.

Furthermore, the Commission’s communication shows that copyright and authors’ rights are certainly not broken but can be adapted in specific areas to cope with the challenges of the online environment. SAA, FERA and FSE welcome the fact that the Commission does not directly question the territoriality principle and recognizes the flexibility of copyright and authors’ rights to adapt to any market structure and business model, whether territorial or pan-European.

However, some measures could still inadvertently question the territoriality principle and need to be reconsidered. While we can support portability of subscription-based online content services, poor drafting that would not limit the portability in time could allow cross-border access through the back door. The same applies to a unified copyright title, considered as the long-term goal by the Commission, and any review of the Satellite and Cable Directive that seeks to extend the country of origin mechanism of direct satellite broadcasting to online transmissions.

In addition, cross-border access still seems to be mistaken for the silver bullet to enhance accessibility of European works. While FERA, FSE and SAA support the objective of improved circulation of European works, we consider that only active promotion which brings European works to European citizens’ direct environment will make a difference in a highly competitive market dominated by Hollywood productions.

Finally, we are surprised by the inclusion of private copying levies in the communication and the negative approach. This sits in stark contrast to the European Parliament’s 2014 resolution which underlined the continued relevance of the system to the digital age and its importance to Europe’s creators. It also seems to contradict the Commission’s insistence that authors’ remuneration is one of its priorities. The levy system is a virtuous cycle, which provides freedom to copy for consumers, a contribution from manufacturers and importers who sell copy-making devices and fair compensation for creators.

Barbara Hayes, Chair of the SAA board of directors said:
“Action on authors’ remuneration is very much linked to the fostering of a sustainable online marketplace for European works by enabling screenwriters and directors to receive continued royalties for previous works while working on the development of future projects.”

Cécile Despringre, Executive Director of the SAA added:
“We do not understand the Commission’s long-term vision of a unified copyright title as if it was in its DNA to harmonise everything. This simplistic and bureaucratic vision is in clear contradiction with the EU’s political motto “United in diversity” which acknowledges exactly what the EU is about.”

Pauline Durand-Vialle, CEO of FERA said:
“Any actual improvement of authors’ remuneration will require a thorough approach by the Commission based on improved contractual practices as well as increased collective bargaining and collective management of rights”

Here are some responses from members of Creativity Works!:

David Kavanagh, Executive Officer, Federation of Screenwriters in Europe, said:
“Authors are at the roots of the creative industries’ value chain. We are hopeful that the European Commission will promote a legal environment with fair remuneration of all right holders safeguarding creativity and ensuring the continued investments which are vital to Europe’s economy.”

Anne Bergman, Director of the Federation of European Publishers, said:
“Exceptions to copyright need to be just that – exceptions, not the rule. It’s a positive sign that the Commission says it will take market specificities and existing practices into account regarding exceptions to copyright. The current system enables respect for cultural and national diversity, flexibility and an appropriate degree of EU harmonization and has led to more creative works being available than ever before. Licences can and are already addressing many issues. Any new exception would therefore have to be justified by very strong evidence of market failure, and consider the incentives for investments by writers, publishers and booksellers in order to ensure the creation, publishing and distribution of new books.”

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