Julia Reda, a Pirate Party MEP from Germany, has published a draft report looking at some key copyright topics across the European Union with a view to influencing the next raft of EU copyright proposals, expected to come from the European Commissioner For Digital Economy And Society early next year. Reda, as ‘Rapporteur’ presents a report that specifically considers how the 2001 European copyright directive was implemented in different EU states, and concludes that there remains too much variation in copyright rules across the Union, which is counter-productive in the age of cross-border digital content consumption. Launching her report, Reda said: “The EU copyright directive was written in 2001, in a time before YouTube or Facebook. Although it was meant to adapt copyright to the digital age, in reality it is blocking the exchange of knowledge and culture across borders today. We need a common European copyright that safeguards fundamental rights and makes it easier to offer innovative online services in the entire European Union”. Reda also revealed the rather long list of content companies, collecting societies and related organisations openly lobbying her once she began work on this paper.
The report is careful to begin by acknowledging “the necessity for authors and performers to be provided legal protection for their creative and artistic work” and says that it “recognises the role of producers and publishers in bringing works to the market, and the need for appropriate remuneration for all categories of rights holders”.
Günther Oettinger, EU Commissioner for Digital Economy and Society, has made it clear that having “modern copyright rules” is one of the key goals for 2015 and the European Parliament intends to contribute to the debate and likely reform action. To this end it appointed Pirate Party MEP, Julia Reda, to produce a report on the implementation on the InfoSoc Directive. The final version of this report will be subject to a vote in the Legal Affairs Committee on 16 April 2015 first, and then the entire Parliament on 20 May 2015 [so, mark your diaries!].
Ms Reda has already presented her plans on EU copyright reform during a meeting of the Legal Affairs Committee. Her new report will be discussed tomorrow before the Committee/
The IPKat explained that Ms Reda’s report, which acknowledges the responses to the recent Public Consultation addresses issues pertaining to both exclusive rights and related exceptions and limitations, and does so by proposing significant changes to the current legislative landscape.
Copyright and freedom of expression
The first interesting thing is the stress that the report places [recitals C to E] on the human rights dimension of the legal framework on copyright and related rights. Copyright is protected under Article 17(2) of the Charter of Fundamental Rights of the European Union, but the same Charter also protects freedom of expression within Article 11. The interplay between such fundamental rights has already been at the centre of judicial analysis, at the levels of both the CJEU [let’s just think of the recent decisions in Luksan and Telekabel, and the European Court of Human Rights [the latter with regard to the European Convention on Human Rights: see for instance, the Ashby Donald, here, and Pirate Bay cases].
Any reform of the acquis will have to address the relationship between these concurrent – not necessarily competing in this Kat’s opinion – rights, also because something has happened following the adoption of the InfoSoc Directive in 2001: in 2007 the Lisbon Reform Treaty placed in fact the Charter on the same hierarchical level of the Treaties.
Exclusive rights: contract law, EU-wide copyright title, duration
With regard to this issue, there are three recommendations that probably stand out.
The first [at 3] is for the Commission to consider the role that contract law plays in defining the actual relationship between different categories of righholders. In this respect, the draft report “calls for improvements to the contractual position of authors and performers in relation to other rightholders and intermediaries” [the so called fair remuneration issue]. This Kat notes that also the previous Commission had started looking into this issue, notably in the leaked draft Impact Assessment [here]. It will be interesting to see if there is any follow-up to this within the current Commission’s term of office.
The second [at 4] was also mentioned in the draft Impact Assessment and has recently found the active support of the European Copyright Society. It is full harmonisation of copyright, by using Article 118 of the Treaty on the Functioning of the European Union as the legal basis for the adoption of an EU copyright regulation. This would be “in compliance with the Commission’s objective of better regulation, as a legal means to remedy the lack of harmonisation resulting from [the InfoSoc] Directive.”
Finally, the draft report proposes to reduce the term of protection from 70 to 50 years after the death of the author, in compliance with Article 7 of the Berne Convention. Personally this Kat would bet that this proposal would not go too far, also considering that the current trend at the level of free trade agreements (FTA), eg the still mysterious Trans-Pacific Partnership or – outside of an EU context – the FTA between US and South Korea, appears to be to set firmly the duration of copyright at (to say the least) life+70.
Exceptions and limitations: certain scope and mandatory character, EU-style fair use
With regard to this topic, the draft report “views with concern the increasing impact of differences among Member States in the implementation of exceptions” [at 10]. While this is what has actually happened in practice on account of an alleged flexibility of Article 5 of the InfoSoc Directive, probably this is not what the directive actually allowed Member States to do, as the CJEU has made clear in a number of recent judgments, including ACI Adam [here] and Deckmyn [here and here; on the topic of (in)flexibilities under EU copyright, you can take a look at these Kat-journal articles here and here].
In addition, the draft report proposes two major changes to the current structure of Article 5 of the InfoSoc Directive, ie:
- To make it mandatory for Member States to implement all exceptions and limitations listed there into their own national regimes. This would “allow equal access to cultural diversity across borders within the internal market and to improve legal security” [at 11];
- To adopt an “open norm introducing flexibility in the interpretation of exceptions and limitations in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author or rightholder” [at 13; this bit of the draft report may require some clarification, though this Kat reads it as mandating upon Member States the introduction of the language of the three-step test into their own national laws, so to have an EU-style fair use doctrine in a fashion similar to what was proposed here].
Other proposals relate to:
- Quotation for audiovisual works
- Freedom of panorama
- Caricature, parody and pastiche
- Text and data mining
- Research and education
- Compensation and levies, including notion of ‘harm’
- Technological protection measures and their circumvention
The Legal Affairs Committee of the European Parliament will discuss Reda’s report in April, while a working group in the legislature will take input from stakeholders on copyright matters until the summer. The Digital Economy And Society Commissioner Günther Oettinger will then begin work on a new set of copyright proposals in the autumn.