On Wednesday 9th December, the European Commission announced new EU policy initiatives concerning copyright and cross border access to online content.
One of the key objectives of the Commission’s Digital Single Market strategy is to allow wider online access to works by users across the EU. Therefore, the European Commission published a proposal for a Regulation on ensuring the cross-border portability of online content services in the internal market. Portability would essentially allow consumers to access the services they have legally subscribed to in their member state of residence when travelling in another member state for a temporary period of time.
The Regulation applies to all online content services, such as Sky and BBC, and includes films, sports broadcasts, music, e-books and games. It creates a legal fiction which means that a consumer temporarily accessing a legally subscribed service abroad is considered to be in their member state of residence and not where they physically are. The Regulation also outlines how to verify a subscriber’s Member State of residence and clarifies that services cannot be expected to provide the same quality of service. The Regulation does not define what is “temporary”. A short timeframe of six months for implementation is given following publication in the Official Journal of the EU. The Regulation will apply to contracts concluded and rights acquired before the date the proposal is applied.
In the official press release from the Commission, Vice-President of the European Commission Andrus Ansip stated that “people who legally buy content – films, books, football matches, TV series – must be able to carry it with them anywhere they go in Europe. This is a real change, similar to what we did to end roaming charges.” Commissioner Günther H. Oettinger said that portability must be a reality by 2017. The Regulation will now be sent to the EU’s two legislative bodies, the Parliament and the Council.
The Communication on Copyright covers cross-border access to content, exceptions, fair remuneration in the online marketplace, and enforcement. The majority of the proposals are scheduled for spring 2016, including the remaining cross-border access initiatives. Here the Commission states that they will consider support to help rights holders and distributors reach agreements for multi-territorial licenses. This could include mediation and alternative dispute resolution mechanisms. They will also consider a proposal on out-of-commerce collections to digitise and make them available and possible changes to the Satellite and Cable Directive. New tools in Creative Europe will also be developed to facilitate cross-border access and industry dialogue.
The Commission is considering new and harmonisation of existing exceptions in the areas of education, research and access to knowledge. They will also look at how to guarantee that the value generated online is shared fairly. This includes looking at the definition of the rights of “communication to the public” and of “making available”, alternative dispute resolution mechanisms, and remuneration for authors and performers.
Finally, the Commission will come with initiatives to improve intellectual property rights enforcement and tackle criminal entities which use copyright content without permission to generate revenue on a commercial scale. This could include setting up and applying “follow the money” mechanisms, amending the legal framework on IPR enforcement and assessing notice and action procedures. A consultation on the enforcement of IPR was published at the same time as the Communication and will be open until 1st April 2016. A separate consultation on online platforms was launched in September and also tackles some of these issues.
Whilst the Commission provides some insight into their plans there is still a great deal of ambiguity in the Communication. The Commission appears to be keeping their options open as they continue to assess their feasibility in the new year.