The European Commission has invited end consumers, institutional users, collective management societies, authors, performers, publishers, distributors and other entities to submit their views on the need for and nature of copyright reform in the EU. The stated goal of any reform is to adapt the EU copyright rules to the online environment, in particular new forms of content distribution.
The Commission has provided a questionnaire, available here. These questions concern many different aspects of copyright law, including those traditionally left for Member States to regulate. The questions include examples of typical copyright problems encountered in the internal EU market. The EU Commission invites stakeholders to provide their views on how to address these problems, including both legislative and non-legislative solutions. The responses may be sent in any of the 24 official EU languages.
Territoriality of copyright and cross-border exploitation
Under the current European legal framework, copyright is protected on a national basis. As a result, any exploitation of a work across the EU territory requires clearance in particular Member State territories where exploitation occurs. The constant development of new digital technology affects the delivery of online services across borders. The EU Commission’s goal is to increase the availability of content related services (VOD, e-books, newspapers, music etc.) while ensuring an adequate level of copyright protection.
Also, the EU Commission invites stakeholders to comment on the concept of a single EU Copyright Title, which would provide full harmonization of copyright law in the EU. By implementation of EU Copyright Title, a current bundle of rights granted by separate territorial legal systems of the EU Member States would be replaced by a single EU-wide right.
Exploitation of works in the online environment
The EU Commission notes the lack of clarity regarding the distinction between the reproduction right and communication to the public right in the digital environment. According to the EU Commission, certain acts of making a work available via the Internet involve both rights. The current Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society does not provide clearly enough what is covered by the right of “making a work available to the public”.
With the growing popularity of social media, the status of user-generated content based on previously existing works is also a subject of the questionnaire.
Hyperlinking and browsing
In the context of online dissemination of content, the question arises whether the provision of a hyperlink leading to a work or other subject matter protected under copyright, constitutes communication to the public and thus should be subject to the authorization of the right holder. The same question (concerning the reproduction right) is posed with respect to creating temporary copies of works while browsing the Internet. The Commission is seeking comments on whether hyperlinking and browsing should require authorization of the right holder and whether copyright exceptions or limitations should apply.
Exhaustion of rights principle
The EU consultations also touch on the exhaustion of rights doctrine as applied to the distribution of digital copies. Currently in the EU, the principle of exhaustion of rights applies to the resale of physical copies. However, the recent decision of the Court of Justice of the European Union in the Oracle vs. UsedSoft case (C-128/11) raises the question of whether this principle is absolute. On the basis of the responses submitted in the consultations, the Commission will analyze the consequences of providing a legal framework enabling the resale of copies previously purchased on the digital market.
Term of copyright protection
The questionnaire also includes questions about the appropriate term of copyright protection.
Under EU law, the terms of protection of copyright, as well as performance and certain other so-called “related rights” are longer than what is stipulated in international treaties (i.e. Berne Convention for the Protection of Literary and Artistic Works and Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations).
Currently, the copyright of an author of a literary or artistic work expires 70 years after his death. The protection of cinematographic or audiovisual works expires 70 years after the death of the last of the following persons to survive: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work.
With respect to related rights the term of 50 years applies. The rights of performers expire in principle 50 years after the date of the performance. The rights of producers of phonograms as well as the rights of producers of the first fixation of an audiovisual recording expire 50 years after the fixation is made.
Registration of copyrighted works
Under the current legal framework, copyright protection is not conditioned by any compulsory formalities, such as registration of a work or legending. The sole act of creation is sufficient for the work to be protected. However, for the purposes of better identification of works, the implementation of a non-compulsory registration system is being considered.
The Commission gives examples of complex private databases, platforms and tools identifying copyrighted works. The stakeholders are invited to submit their views on whether and how the EU should support development of such sources of information on works and ownership of rights, which would enable licensing.
Copyright exceptions and limitations
The stakeholders are invited to submit their comments on the existing catalogue of exceptions and limitations provided in the Directive 2001/29/EC, which include among others: temporary acts of reproduction which are integral to a technological process, private copying, exploitation of works for the sole purpose of illustration for teaching or scientific research, quotation for purposes of criticism or review.
In the debate about the EU copyright law reform, proposals to modify the exceptions and limitations were presented. New types of preservation of works, archiving publicly available web content, off-premises access to library collections, temporary access to digital content (e-lending), data and text mining, as well as licensing of content for certain educational uses, such as distance learning or non-commercial scientific research, are covered in the consultation questionnaire.
In addition, the consultations deal with the potential need to harmonize the EU copyright law with the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, which require its signatories to adopt laws that permit the reproduction, distribution and making available of published works in formats accessible to the impaired persons through limitations and exceptions to the rights of copyright right holders.
Reprography and private use
The EU Commission suggested that the system of compensation for private copying be reconsidered.
In particular, the system of levies imposed on devices intended for copying or similar purposes (copying machines, blank media, scanners etc.) may require verification.
Another area identified by the Commission is the efficiency and appropriateness of the civil enforcement measures provided in the Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights.
Fair remuneration of authors and performers
The Commission also invites stakeholders to submit their ideas on how authors and performers should be provided with adequate remuneration for online exploitation of their rights. In particular, the Commission would like to identify contractual mechanisms that should be verified and addressed.
As seen from the above, the European Commission has undertaken a very ambitious task of a very broad review of the EU copyright rules. This task is particularly difficult because only a few months remain before the expiration of the current term of the European Parliament and other ruling bodies of the European Union.