The European Commission (EC) has long been working on adjusting European copyright regulation to new ways of e-commerce and technological advances. Since the EC announced the strategic plan for a Digital Single Market in 2015, it has drafted several proposals that have been crystallized into the draft of Directive on copyright in Digital Single Market that was made public last 31St of August.
The main purposes of the EC with this draft Directive is to:
1) ensure the protection of works when used online
2) improve the profitability of said use for right holders
3) ensure users the possibility to consume online content (films, sport broadcasts, music, e-books and games) when they travel in other EU countries.
The draft, although condensed, addresses some important and controversial issues with regard to e-commerce, digital and cross-border uses of protected works; among those, the use of audiovisual works on video-on-demand (VoD) platforms, as well as the application of the limitations and exceptions to these uses. The draft has already brought controversy amongst parties interested on the matter.
According to its Whereas, the draft Directive does not affect the current legal background: it was created upon the rules laid down in the copyright related Directives and it is only aimed to complementing them.
Namely, the draft addresses the following topics:
- Exceptions and limitations regarding scientific research and illustration for teachingRegarding databases, the draft limits the reproduction right and the sui generis right with respect to text and data mining uses (or automatic data extractions). These limitations would imply that a research organization (as a university and/or any other organization with educational services) could extract and use the information and data from databases without requiring authorization.
Also, it covers the digital use of works and performances for the sole purpose of illustration for teaching. However, the use is limited to non-commercial uses and said use must take place on the educational establishment´s premises or through a secure electronic network accessible to students or educational staff.New neighboring right for publishers of news publications. The draft establishes a new neighboring right in favor of the news publishers with respect to their content made available online. The draft grants publishers the reproduction right and the right of making available to the public in and to their news publications.
- New neighboring right for publishers of news publications. The draft establishes a new neighboring right in favor of the news publishers with respect to their content made available online. The draft grants publishers the reproduction right and the right of making available to the public in and to their news publications.
Rules regarding the preservation the cultural heritage. The draft not only includes an exception in benefit of cultural heritage when it comes to works in a permanent collection of a cultural heritage institution (e.g., museums, libraries, etc.) allowing them to digitize, distribute, communicate to the public and/or make available of works included in their permanent collections; it also incorporates non-exclusive licensing rules to be applied by collective management organizations (CMO). The latter permits cultural heritage institutions to make copies, even digital copies, of any work that is permanently in their collections but are unavailable to the public through traditional channels (works out-of-commerce).
- Obligation to the Member States of creating and/or appointing a new impartial body to serve as mediator when negotiating the terms of licensing agreements for the making available of audiovisual works The draft introduces a new obligation to Member States to appoint an impartial organism to solve controversies between VoD platforms and right holders of audiovisual works that might take place in the negotiations of licensing agreements.
- Protection of authors and performers when signing assignment contracts, specifically provisions regarding their remuneration right. The draft establishes a “transparency obligation” for the assignee of the exploitation rights to give the author/artist information on the exploitation of the work and performances on a regular basis. Also, the authors and/or performers would have the right to claim an additional remuneration when the agreed remuneration is disproportionately low as compared to the subsequent revenues and profit derived from the exploitation of the work.
The EC tries to bring clarity to legal uncertainties, although some of these points are very controversial. For instance, the new neighboring right for publishers of news publications and the obligation to negotiate with them the authorization to use their contents online is already causing conflict. Google has insinuated that it may perhaps quit entirely providing the Google News service in all Europe if this provision is implemented without any further modification (see the statement given by Caroline Atkinson, vice-president of Google).
Also, although it may seem that all these provisions are already foreseen on the internal regulations of some European countries (such as Germany and/or Spain) with some differences with respect to cross-border uses, they are not entirely harmonized and conflicts on these matters are still on the table. Therefore, we highly recommend to keep on sight the progress of this new proposal of Directive since its approval would make a dramatic impact on copyright treatment in the digital market and information society services providers all around Europe.
From the Enforcement and Competition area of Santiago Mediano Abogados, we care about the protection of intangible assets by planning and adopting strategies and measures that ensures its effectiveness, even before the exercise of legal actions.
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