The latest instalment in the EU’s Digital Single Market project is a package of copyright reforms. It has received a mixed reaction, with generally favourable comment from broadcasting organisations and content producers but strong objections from the online business community.
Announced in June 2015 the Digital Single Market project promised a wide range of initiatives across broadcasting, e-commerce, online services and cybersecurity. Among the plans was an overhaul of copyright intended to benefit both consumers and innovative businesses.
The EU Commission has now released detailed proposals for copyright reform. The proposals try to find the right balance the competing demands of authors musicians, broadcasters, publishers etc, with those of online service providers. Of course, the measures are likely to be amended in the legislative process, and may never apply to the UK given the current Brexit process, but they give a good indication of the future for the rest of the EU.
This draft law follows on from the "cross-border portability" proposal announced in December 2015 to permit consumers to access their ‘home’ services while travelling around the EU. It deals with cross-border rights clearance for television and radio services provided online, by simulcasting or catch-up, plus certain ancillary services such as supplements and previews. It is intended to facilitate rights clearance to enable cross-border distribution, in a way similar to that in the Satellite and Cable Directive. It relies on a "country-of-origin" principle so that copyright clearance only needs to be dealt with in the member state where the broadcasting organisation is established.
The European Broadcasting Union has welcomed the plans calling them
“a modern and balanced solution based on proven tools which have unlocked access to broadcasters’ programmes across borders on satellite and cable networks”,
although organisations such as ACT (Association of Commercial Broadcasters) have expressed concerns that the plans will undermine the financing of new content.
The draft copyright reform directive is more contentious.
This contains a series of measures “to achieve a well-functioning marketplace for copyright”. These include:
- greater policing by service providers that store and give access to large amounts of works uploaded by users (YouTube for example). They will have to provide technologies to recognise protected content, provide complaints mechanisms etc.
- increased transparency for authors and performers about use of their work and revenues generated, and rights to request more money where the amount originally agreed is “disproportionately low”.
- a "related right" to cover digital uses of press publications, commonly called a "link tax" or "snippet tax".
It alters the exceptions to copyright infringement, notably:
- making the teaching exception mandatory and extending it to ensure that cross-border teaching is covered,
- introducing a new mandatory text and data mining exception for organisations acting in the public interest. This will not apply to commercial organisations, but it will cover work done in public-private partnerships.
Comment on the proposals has been mixed.
The Publishers Association calls them “a sensible set of proposals” that recognise “the role of both publisher and author within the copyright framework”.
But reaction from the internet community has been broadly negative. Open source software company Mozilla’s Denelle Dixon-Thayer, says,
“These proposals, if adopted as they are, would deal a blow to EU startups, to independent coders, creators, and artists, and to the health of the internet as a driver for economic growth and innovation.”
An open letter from a wide grouping of digital organisations expressed similar concerns.
Objections focus on the following areas.
- Restricting the text and data mining exception to public interest research institutions, leaving commercial organisations to obtain permission – and pay licence fees – if they want to carry out these activities.
- Restriction of linking and payments of fees to publishers under the “snippet tax” proposals.
- Undermining of the safe harbour for intermediaries.
Mozilla has started calling on internet users to “send a Rebellious Selfie” to the EU Parliament to highlight the inadequacies of the proposals.
Facilitation of access for the visually impaired
The package also includes measures to implement the newly in force Marrakesh Treaty on access for the visually impaired to published materials, introducing a mandatory exception to copyright protection for accessible format materials.