Europe reforms its Copyright

by Hogan Lovells

Hogan Lovells

The Digital Single Market is gradually taking shape. We have seen quite some legislative activity since the European Commission first announced the Digital Single Market Strategy in May 2015. On 10 May this year, the Commission published a mid-term review evaluating what has been achieved. With the aim of creating an Internet without barriers throughout the whole European Union, the Commission is particularly focussed on reforming and modernizing the European copyright law. The Commission’s mid-term review is therefore the right time to look more closely at this specific part of the overall DSM strategy.

What is the EU Copyright Reform?

On 9 December 2015, around 6 months after the kick-off presentation for the Digital Single Market, the Commission presented the action planTowards a modern, more European copyright framework“. It divides the copyright reform into four areas:

  1. Widening access to content across the EU
  2. Exceptions to copyright rules for an innovative and inclusive society
  3. Creating a fairer marketplace for copyright works
  4. Fighting piracy

The first three pillars have been addressed by the five drafts for regulations and directives we have seen in the copyright area. The fourth pillar and in particular enforcement matters, however, have not been the centre of the Commission’s legislative efforts. This will change now according the mid-term review. The Commission is planning to announce measures by the end of 2017 which will involve the procedural aspects and principles on removal of illegal content (see also our blog post). According to a recently leaked Commission document, however, the review of the Enforcement Directive 2004/48 is currently at a “deadlock”. It remains to be seen if and how the further procedure will look.

The new Copyright Directive

At the heart of the reform and on 14 September 2016, the Commission proposed the draft for a directive on copyright in the Digital Single Market. The draft lays down several (mandatory) exceptions to copyright, provisions for out-of-commerce works, the introduction of a press publisher’s neighbouring right, new obligations for service providers and general provisions for copyright contracts.

Right now, the involved committees – under the leadership of the Committee on Legal Affairs – were and are still discussing the single proposals. In March 2017, MEP Therese Comodini Cachia presented in total 73 proposals for change (see our blog post), including a proposal to drop the introduction of a new neighbouring right for press publishers.

Since then, the number of proposals has significantly increased to 996 (!) published proposals for change. Besides the introduction of the neighbouring right for press publishers, another highly debated issue is how to handle service providers and whether an obligation like an upload filter in order to monitor user generated content online is the appropriate measure. Significant changes to the Commission´s draft by the Parliament are therefore very likely. The Council has not spoken up yet.

The Implementation of the Marrakesh Treaty

Regarding the signed Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled by the WIPO, the EU Commission has presented two legal drafts in September 2016: one for a directive and for a regulation. On 10 May 2017, the Commission Council reached a compromise regarding the implementation of that treaty together with the Parliament and the Council. Therefore, the biggest obstacle within the legislation process has been taken. The compromise will first pass the Committee on Legal Affairs and second the Parliament itself, in July 2017.

The compromise lays down a mandatory exception for blind and visually impaired people facilitating their access to works in accessible formats. It has not been published yet. According to David Hammerstein from the World Blind Union and the European Blind Union (EBU), the Member States will have the option to demand compensation for publishers regarding the distribution of accessible formatted copies of copyrighted works. On the other hand, it will not be necessary for organizations to check the availability of accessible copies.

The Regulation on Online Transmissions and Retransmissions

The draft regulation laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes which was published on 14 September 2016 is currently being debated in various committees of the European Parliament. One of the main goals of the draft is the extension of the ‘country of origin’ principle (known from the Satellite and Cable Directive) to the Internet. Concrete proposals for change have not been published yet. They can be expected, however, before the summer break.

The Regulation on Cross-Border Portability of Online Content

The proposal on portability was published on 9 December 2015 and is therefore the first concrete proposal of the copyright reform. The planned regulation will allow subscribers of service providers of online content such as movies, series or sport events to access and watch the content even when they are temporarily in another member state. So far, Netflix or Sky Bundesliga could not travel with you. This is going to change.

On 7 February 2017, the three European institutions agreed informally on one proposal. The proposal just passed the Parliament on 18 May 2017. Now, only the Council needs to officially adopt the draft. The regulation shall come into force at the end of 2017 or beginning of 2018.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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