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Reform of EU copyright law - what can we expect?

The digital and technological advancements of the modern world seem to progress at lightning speed and copyright law is often perceived as struggling to keep up.

The Copyright Designs and Patents Act (CDPA) in the UK came into force in 1988, but we now live in a digital world and copyright laws were not drafted in a time of internet television, social media, smart phones, tablet computers, apps and 3D printing.

Copyright law has been updated over the years to take into account changes brought in by EU legislation and case law but we have been left with a long and complex piece of legislation which is difficult to access and understand for the majority of creators, users and exploiters of copyright works.

The last major update of EU copyright law was in 2001 with the introduction of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (often referred to as the Infosoc Directive). The Infosoc Directive set out to foster creativity and growth of the European creative industries and harmonise those rights across the EU:

1. It sets out the exclusive rights granted to copyright owners.
2. It introduced the concept of technological protection measures to prevent users from circumventing technological measures designed to prevent copying.
3. It also provides a number of exceptions and limitations to copyright but the majority of these are optional with Member States being able to pick and choose which ones they give effect to in national laws.

The Infosoc Directive has been heavily criticised as it did not really go beyond the status quo of copyright law already in place in Member States and resulted in a fragmentation of copyright law across the EU as Member States could pick and choose which exceptions and limitations to implement. As a result, and with the further advent of technology since 2001, 14 years later it seems increasingly out of date.

Digital Single Market Strategy

Earlier this year, the EU Commission released its Digital Single Market Strategy which announced its intentions to adopt legislative proposals for a more modernised and harmonised EU copyright law. In advance of these proposals, on 9 July 2015, the European Parliament adopted a non-legislative resolution in relation to a report on copyright reform prepared on its behalf by Julia Reda, who is widely regarded as having a liberal approach to copyright.

The report sets out recommendations for the Commission on the adaptation of the Copyright Directive to make it appropriate for the modern digital age. Some of the main areas of suggested reform include:

Improvement of cross-border accessibility

The report highlights the need to maintain the territorial nature of copyright so that works can be exploited on a national or regional basis, particularly in reference to territorial licences for the financing of audio-visual and film productions. However, there is also a call for a review of the way in which territorial limitations are managed.

A much used method for companies wishing to impose territorial limitations on consumers accessing and purchasing habits is geo-blocking, which is criticised in the report which also urges the Commission to review ways to improve the cross-border accessibility of services and copyrighted content. For example, preventing geo-blocking would mean that users would be able to access and view videos online from other countries that would otherwise be restricted. For cultural minorities this means that they would be able to access content or services from other countries in their own language. It would also mean that companies would be prevented from restricting the sale of their goods and services online to certain countries in the EU.

Single copyright regime across Europe

The Commission is being asked to consider the possibility of further harmonising national copyright laws by introducing a single copyright title valid across the whole of the EU. It is suggested that this would need to include a study on its likely impact on the interests of authors, rights owners and copyright users. 

Balance of interests

The report has asked the Commission to ensure that any modernisation of copyright law ensures a balance between all parties concerned in the protection of copyright works including authors, performers, rights holders, users of copyright works and the general public. This includes ensuring fair and appropriate payment for all categories of rights holders and improving the imbalance of power as between small and independent authors and artists against large corporations particularly in the context of copyright licensing and contractual negotiation.

Copyright exceptions and limitations

The report calls for the Commission to review the existing exceptions to copyright law and modernise and harmonise exceptions accordingly. Currently, copyright exceptions such as the use of copyright works in quotation, parody or for non-commercial research and limited education purposes are neither mandatory nor uniform across EU member states. The Commission has also been asked to review the possibility of introducing additional copyright exceptions including the ability for libraries to lend books in digital format e.g. e-books and for scientists to be able to use text and data mining to extract information from online academic journals. The report also asked for exceptions to copyright to be safeguarded against technological protections (as currently provided for in the Infosoc Directive) which prevent people from being able to rely on exceptions provided by law. For example, where people are prohibited from being able to make copies of CDs and DVDs or transporting content from one device to another as per private copying exceptions, due to the CD or DVD being technically protected from being copied.

Freedom of panorama

The 'freedom of panorama' means the right to create and share photographs of public buildings and art works without the need to pay compensation to the copyright owner. Freedom of panorama has already been implemented in a number of member states, including the UK under Section 62 of the CDPA. Originally in its debate on the report the European Parliament argued that pictures of public buildings would need the copyright owner's permission for commercial use. However, after much debate, the European Parliament finally agreed a proposal for the freedom of panorama to proceed and have asked the Commission to consider an EU-wide implementation of this right.

Next Steps

The adoption of the report on copyright reform by the European Parliament is somewhat controversial and the report itself has been heavily criticised across the EU for being too ideological and too pro-user. The report has also been criticised by other MEPS for not fully analysing the current position in respect of the Infosoc Directive and simply setting out idealistic legislative proposals rather than concrete recommendations.

The Commission's legislative proposals for the reform of EU copyright law are expected by the end of 2015. The European Parliament's resolution is non-binding and essentially has no legal force and to what extent the Commission uses the report for the basis of its legislative proposals remains to be seen. However, what we can be assured is that there is an exciting period ahead for EU copyright.

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