The European Commission announced today radical plans to overhaul copyright. The proposals focus on users’ability to legally access copyrighted content across borders, and they are understood to have upset the entertainment and music industries. This is not surprising since the changes will cut right through their copyright-supported distribution infrastructure.
The main plank for change will be the territoriality of copyright. Territoriality refers to the way that the entertainment industries are organised around national borders for the granting of rights and the distribution and sale of goods. On the Internet, this system is managed by asking intermediaries to block content that is not
licenced in the user’s country - this is a form of geo-blocking. For example, that’s why You Tube videos are blocked with a message saying it is not available in your country. It’s also why Spotify is only available in some countries and not others. It is this geo-blocking that the Commission wants to stop.
Andrus Ansip, a vice president of the European Commission, made clear his dislike of this geo-blocking: “we can say clearly that geo-blocking is the main obstacle for companies and people. There are 100 million Europeans sitting at home wanting to get content from other countries, but can’t get it’ he said. Indeed he is understood to have said previously that he hates it.
Mr Ansip agreed that the entertainment companies are not happy with his proposals. Such resistance on the part of the major stakeholders will create a difficulty for the Commission. Mr Ansip can draft proposals that they don’t like, but if he does not get their agreement, they will attack the proposal when it moves on to the European Parliament. The copyright industries have been known to do this before, notably in the 2009 Telecoms Package (see my book The Copyright Enforcement Enigma or see my paper from 2008 Why we should protect 'mere conduit' and reject the copyright amendments )
Günther Oettinger, Commissioner for the Digital Agenda, seems somewhat more industry friendly, and I'm still not convinced that he gets the Internet copyright issues. The jury is out as to whether he or Ansip will win the internal battles.
The other major change for copyright proposed by European Commission is to ensure that the rights to parody, quotation, and private copying are the same throughout all Member States. At the moment, they are not the same. For example, users may be able to legally cite a work in one country but not in another. The Commission is taking the perspective that this is a ridiculous situation and seeking to sort it out.
If the European Commission can draft workable rules on these two issues, it will make it better for Internet users, who will be able to take content legally on their smartphones from one country to another. However, this is actually not a new issue and has been ongoing since 2005. The chances that it will be resolved this year, as the Commission has targetted, are slim.
A slight anomaly in the European Commission proposals is the inclusion of copyright with regard to databases and data mining for research. This is included because technically it falls under copyright law. However, in my opinion, this is less politically sensitive than the commercial distribution structures of the entertainment industries.
The really hot potatoe concerns Internet intermediaries and copyright enforcement. This is one where the Commission will lose all its friends, if it is not careful. It’s a policy that is clearly being driven by the copyright industries and the Commission even repeats their language. It calls for three positive actions. One is to target “commercial scale” infringement, but the Commission fails to define what is meant by this term. Three years ago, a similar failure to define “commercial scale” was highlighted in the European Parliament regarding ACTA. As an observation, one would expect that the Commission would not make the same mistake twice.
The second action is to “follow the money”. Again, this is not defined and leaves it open to interpretation – for example, it could refer to closure of payment facilities by US-based financial payment companies (see EDRi’s commentary).
The third proposal is to revive the Notice and Action directive. This directive was stalled in 2013, due to opposition from rights-holder lobbyists.(see Notice and action directive to be blocked as EU backs down)
Any of these three proposals will spark fierce political debate. These enforcement actions engage the right to freedom of expression under Article 10 of the European Convention on Human Rights. They do so because they entail the restriction or removal of content, and may only be implemented under appropriate supervision by the judiciary or the State. In that regard, the chances that the European Commission will release a proposal this year must be regarded sceptically.
Finally, blink and you’d miss it, but broadcast copyright has been slipped in at the last minute. This one is really interesting and it brings the proposals bang up to date. The issue of broadcast copyright is getting hotter as more people want to watch TV on their smartphones and tablets. It was addressed in the United States last year in the case of ABC v Aereo ( see my article and paper on this case Copyright liabilities loom for cloud providers in wake of Aereo judgement.)
The total package would offer a major overhaul of EU copyright, giving wider rights to users of content, and new enforcement measures to rights-holders. However, the political sensitivity of the underlying issues – in particular, the engagement of free speech rights – means that the likelihood of all the measures appearing in a draft proposal in 2015 is very slight. Even to have a set of copyright measures agreed by all stakeholders by the end of the term of the current Commission is quite frankly, ambitious.
This article was prepared using the final published version of the European Commission's Communication on a Digital Single Market Strategy for Europe . See EU plans wide-ranging digital policy shake-up - what’s in it for users?
A coalition of human rights NGOs and technology industry organisations have written a joint letter to the European Commission asking the European Commission to maintain the protection of Internet intermediaries from content liability and reminding it of its duty to guarantee fundamental rights.
The political context for copyright enforcement on the Internet and EU law is discussed in my book The Copyright Enforcement Enigma which discusses the 2009 Telecoms Package and the processing of it in the European Parliament. The book explains how copyright industry lobbyists tried to get amendments into telecoms law. (If you don't get why they would do this, then you definitely need to read it!)
If you are interested in how copyright lobbying operates in the European Parliament, then you may also like my other book A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms
This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2015, EU announces radical copyright overhaul for cross-border content in Iptegrity.com, 6 May 2015. Commercial users - please contact me.