Further to the proposal for a regulation on cross-border portability of online content services in late 2015, the European Commission has just unveiled its new set of proposals to ameliorate EU copyright and achieve a fully functioning digital single market.
These - among other things - include proposals for a new directive on copyright in the Digital Single Market and a regulation on certain online transmissions of broadcasting organisations and retransmissions. Both instruments, if adopted in their current form, will have a deep impact on the EU copyright framework, particularly with regard to online uses of copyright works, responsibilities of hosting providers, users’ freedoms, and authors’ contracts.
A more detailed analysis of relevant documents will be provided soon: stay tuned!
But here's an immediate question: Is the new package different from the leaked versions [here and here]? Well, yes, to some extent.
Taking the proposed directive, for instance, it appears that:
(1) in relation to the so called 'value gap' [Recitals 38 and 39, and Article 13], the overall tone appears more stringent than the one used in the version that this very blog leaked a few days ago.
In particular, Recital 38 of the actual proposal requires any hosting providers that give access to large amounts [what's the threshold?] of copyright works to "take appropriate and proportionate measures to ensure protection of works or other subject-matter, such as implementing effective technologies [read: filtering technologies]. This obligation should also apply when the information society service providers are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC."
|Commissioners Ansip and Oettinger|
How can this be achieved without also reforming Article 15 of said directive is unclear in my opinion. Yet, regrettably the proposed directive fails to address what relationship it has with Directive 2000/31 ...
(2) in relation to the new press publishers' right [Article 11], while the version leaked a few days ago spoke of 'news publications', the actual proposal prefers the [apparently broader] term 'press publications'.
In addition, Recital 34 in the proposal states that the right granted to press publishers "should have the same scope as the rights of reproduction and making available to the public provided for in Directive 2001/29/EC, insofar as digital uses are concerned. They should also be subject to the same provisions on exceptions and limitations as those applicable to the rights provided for in Directive 2001/29/EC including the exception on quotation for purposes such as criticism or review laid down in Article 5(3)(d) of that Directive"
All in all, while this Recital appears possibly aimed at being GS Media-proof, it appears odd that reference is made to the making available right, instead of the broader communication to the public right, of which the making available right is part. In addition, GS Media was about the right of communication to the public right, not the making available right.
Follow the official presentation
You can follow the presentation of the content of this new copyright package by Commissioners Ansip and Oettinger this afternoon at 15:15 CET by using this GS Media-approved link.
Wish to discuss all this?
I am organising two new events to review and discuss all these recent developments, including the feasibility (and desirability as such) of proposed Commission action.
- The first event will take place on 5 October 2016 at the beautiful Tower Bridge offices of RPC. Places are limited (with some tickets available for full time students), to provide everybody with the opportunity to discuss fully the present and future of EU copyright. You can find further details and register here.
- The second event will be streamed on YouTube on 6 October 2016: participants can decide to follow it live or watch it at any later time of their choice. This second option is for those who are unable to attend the event on 5 October 2016, eg because based outside London. You can find further details and register here.