As announced in its 2016 Work Programme (See, VBB on Business Law, Volume 2015, No. 10, p. 15, available at www.vbb.com), the European Commission presented on 9 December 2015 its vision on a further harmonisation of EU copyright rules as part of its Digital Single Market Strategy (the "Communication"). To achieve a wide availability of creative contents across the European Union while maintaining a high level of protection for right holders, the European Commission considers it necessary to have a higher level of harmonisation and adapt copyright rules to new technological realities. To achieve this goal, the European Commission focuses on the following courses of action.
Online Content
First, the European Commission aims to ensure a wider access to online content across Europe. To that end, it presented, together with the Communication, a proposed Regulation on the cross-border portability of online content services in the internal market which allows EU residents to travel with the digital content to which they have lawful access or that they have purchased or subscribed to in their country of residence.
The access to content in Europe also touches upon television and radio broadcasting services. In this area, the European Commission is currently carrying out a review of the Satellite and Cable Directive for its potential application in the online environment.
Exceptions
Second, the European Commission will adapt the exceptions to digital and cross-border environments.
As a first step, the Commission will propose the legislation required to implement the Marrakesh Treaty to facilitate access to public works for persons who are blind, visually impaired or otherwise print disabled, signed on behalf of the EU on 30 April 2014.
The European Commission will then provide clarity on the scope and the application of the exception on illustration in teaching and of the panorama exception (pictures of works permanently located in public spaces). The European Commission will also extend the preservation exception to digital formats and broaden the exception for consultation of works for research and private study on the libraries' physical premises to encompass remote consultation.
Also, the European Commission intends to allow public interest research organisations to carry out text and data mining of legally obtained content for scientific research purposes. The lack of European provisions to that effect has created uncertainties in the research community where vast amounts of digital content are read and analysed by machines. This has harmed EU's competitiveness and scientific leadership at a time when cross-border and cross-discipline collaboration are increasingly stimulated.
Furthermore, the European Commission will ensure that the levies for private copying and reprography levied by Member States compensate right holders and do not raise barriers to the free movement of goods and services.
Communication to the Public – News Aggregators
Third, the European Commission intends to clarify the definition of the rights of "communication to the public" and of "making available". It will also consider whether any action specific to news aggregators is needed. Some Member States have already adopted measures granting protective rights to news publishers to protect against their news messages being summarised or excerpts being used by news aggregators. However, the appropriateness of such a new exclusive right is contested. The European Commission will study the effects of these national rights before it decides on whether any harmonised, EU-wide action is needed.
Piracy
Finally, the European Commission wishes to provide an effective and balanced enforcement system. It will set up and apply "follow-the-money" mechanisms which take into account the different types of intermediary service providers. The European Commission will also focus on commercial-scale infringements and clarify the rules for the identification of infringers, the application of precautionary measures and injunctions and their cross-border effect as well as the calculation and allocation of damages and legal costs.
The full text of the European Commission's Communication can be consulted here.
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