Harmonisation of EU copyright: the Commission consults

The European Commission (the "Commission") is set to complete its review of copyright law in the EU by spring 2014.

As part of this review, the Commission has launched a public consultation focussing on issues such as improving the cross-border licensing of copyright, the nature and scope of rights in digital content, and the limitations and exceptions to copyright. The Commission stated that the aim of the consultation is to:

"… [ensure] that the EU copyright regulatory framework stays fit for purpose in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity".

This article touches upon the review's context in the Commission's long standing desire to harmonise copyright law in the EU and focuses on some current copyright issues anticipated to feature in the review, together with the extent to which a harmonised approach will be of benefit to rights holders.

The consultation

This most recent review follows on from various other Commission initiatives relating to the harmonisation of copyright in the digital era, including the following:

• In July 2006, a wide-ranging consultation on online content with a view to making Europe's online-content market more competitive;
• In January 2008, a communication on creative online content in the single market;
• In October 2009, a further consultation on the challenges to creating a single market for creative content online, and the way those challenges could be addressed;
• In May 2011, the publication of a new strategy for intellectual property rights; In December 2012, a communication entitled "The Digital Agenda for Europe - Driving European growth digitally"; and
• In 2013, a programme of stakeholder discussions with the objective to find ways of simplifying the online licensing and distribution of copyright works across Europe.

The consultation, launched on 5 December 2013, takes the form of a near 40 page document comprising around 80 questions covering topics as broad as:

• the functioning of the single market for copyrighted works
• linking and browsing
• duration of copyright
• registration of copyrighted works
• exceptions and limitations for cultural heritage institutions, education, research, persons with disabilities and “user generated content”
• private copying and levies
• the fair remuneration of authors and performers
• respect for rights
• the possibility of a single EU copyright title.

The Commission has set a deadline of 5 February 2014 for stakeholders to respond.

Two topics covered by the consultation and likely to be of particular interest to rights holders will be the cross border portability of digital services within the EU and the issue of linking and copyright infringement.

Cross border portability

One of the areas for consultation is the lack of cross border portability of online services for consumers within the EU. For example, a consumer may sign up to a service in their home country but find they are unable to access that service if they attempt to use it when in a different EU country (e.g. if they are away on holiday/business). Similarly, a consumer in one EU country may be unable to access digital content from other EU countries due to licensing arrangements which designate a separate service for each EU state and deny access to those "foreign" websites or redirect consumers to specified websites in the consumer's home country.

Whilst consumers would no doubt appreciate a harmonised approach to licenced content which would allow the use of/access to digital content purchased in one EU country across all the whole of the EU, such a position may not be as attractive to rights holders.

Amongst other things, rights holders focus on setting royalty rates for specific territories which ensure maximum levels of activity, and therefore revenue generation, within that territory. Therefore the factors which determine the profitability of a licence are likely to vary across EU countries e.g. maturity of the online content market, value placed on online media content, acceptable royalties etc. As such, carefully constructed and managed local licensing policies can help rights holders maximise their potential revenues.

Consequently, a harmonised approach allowing EU consumers access to their online services across Europe could have a negative impact on rights holders as consumers may begin to "forum" shop across Europe for the best deals for their online content. Ultimately, such a situation may not be beneficial for consumers if rights holders reacted by increasing and/or harmonising their prices across Europe to protect their gross levels of European revenue. It will be interesting to see responses to this issue from consumers and rights holders alike and any conclusions drawn by the Commission.

Linking

One area which has generated a lot of interest recently is whether "linking" to copyrighted material is an infringing act in itself. The act of linking refers to the creation on one website (the "linking site") of a link to a page of another website, the "linked site". Linking is common practice and can be beneficial to the linked site by driving traffic there.

Until relatively recently, the view had been that posting a link to another website would not infringe the copyright of the linked site because posting a link does not copy the linked site to the linking site's server. Additionally, the link itself tends to comprise limited text and be insufficient to attract copyright protection for the linked site owner. However, recent decisions across Europe have called these views into question and there have been some diverging opinions across member states, creating some legal uncertainty for rights holders. By way of example:

• In a report entitled "Modernising Copyright" prepared by the Irish Copyright Review Committee and released on 29 October 2013, the Committee recommended to the Irish government that: "…linking should not infringe copyright, except where the provider of the link knew or ought to have been aware that it connects with an infringing copy."
• However, this is not a view shared by the Amsterdam Court of Appeal which (on 19 November 2013) cleared a website of infringing Playboy’s copyright when it linked to leaked nude pictures due to be published by the adult magazine.
• In Sweden, two cases have been referred to the CJEU (Case C-466/12 Svensson and Case C-279/13 C More Entertainment) asking the CJEU to rule on whether linking to infringing material is a breach of copyright.
• Under English law, the position is unclear, with Arnold J noting that it is uncertain whether the provision of a hyperlink would constitute a communication to the public within the meaning of the s.20 CDPA1988/ Article 3(1) of Directive 2001/29/EC (see Paramount Home Entertainment International Ltd and others v British Sky Broadcasting Ltd and others [2013] EWHC 3479 (Ch), 13 November 2013). This very question has been referred to the CJEU (C-348/13 BestWater International) by the German Federal Court of Justice with judgment stayed pending judgment in Case C-466/12 Svensson. Arnold J's view (gleaned from his obiter comments in Paramount) appears to be that mere provision of a hyperlink would not amount to a communication to the public but that framing (where the linked content displays within the frame of the linking site) is likely to be viewed differently.

Given the current uncertainty, a harmonised approach on linking is likely to be welcomed by rights holders, particularly those with large volumes of online content which are regularly linked to (e.g. online magazines and newspapers). Therefore, assuming that the CJEU judgments are available at the time, it is anticipated that the Commission will take the decisions into account when publishing its review.

Conclusion

Given that the consultation period ends at the beginning of February, the Commission's goal of completing its review by spring 2014 seems rather optimistic. Progress on the harmonisation of copyright has historically been slow given the often opposing views between consumers, rights holders and the various member states. Indeed, some of the consultation is re-treading ground already covered by previous initiatives referred to above.

Further, it is not clear what the outcome of the review will be. Some commentators feel that it would be unlikely to feed directly into a legislative proposal for an updated EU copyright directive this year as 2014 is an election year. If this is the case, perhaps the best to be hoped for is that the review will provide the next Commission with a roadmap for copyright reform. In the meantime, there is still time for rights holders, consumers and other stake holders to contribute to the review by providing their perspectives before 5 February. Follow this link to find out more

http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm