10 March, 2014
On March 5th 2014, the public consultation on the review of EU copyright rules closed after a period of three months. The objective of the consultation was to gather insights and views from all relevant stakeholders on the subject of copyright reform.
The digital environment has brought a lot of new opportunities for content creators and consumers, but has also resulted in new challenges for rights holders and intermediaries. The question the European Commission now faces is whether it is necessary to review the current European copyright framework in order to adapt it to the these changes. As part of the review process, the European Commission asked stakeholders for their input on the following issues:
- Territoriality in the Internal Market;
- Harmonisation of copyright in the digital age;
- Limitations and exceptions to copyright in the digital age;
- Fragmentation of the EU copyright market; and
- How to improve the effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform
The contributions have not been made public yet, but as the Commission has received 11.117 reactions, we will guide you through some of the thoughts that have been expressed by the rights holders in particular.
We have asked several content creators and rights holders in the EU what their input into the consultation with regards to these issues would be. Rights holders seem to have mixed feelings on the idea of reviewing copyright in the EU. Further harmonization of copyright, for example by creating more unity in limitations and exceptions to copyright is generally welcomed by rights holders. However, overly drastic changes to the basic principles of copyright may have negative consequences for the EU content market.
There seems to be some difference between how EU policy makers look at copyright and how the creative sector works with copyright on a daily basis. This difference is especially noticeable when regarding the issue of territoriality. Content producers often issue specific licences for specific countries. As supply and demand set the price for a product, marketing strategies differ between member states. Arguably, this leads to a highly fragmented European marketplace. There are many reasons for this difference, such as cultural differences, language barriers or national supply. Rights holders fear that creating a single market for copyright in Europe, for example by obligatory pan-European licensing, would undermine the economic system of supply and demand in such a way, that both consumers and rights holders would be disadvantaged. This happens when rights holders lose contractual freedom to negotiate licensing terms tailored to fit local markets. For example, Creativity Works! – a coalition of organisations, federations and associations from the European cultural and creative sectors – argues in its contribution to the consultation that: “as experience goods and services, creative works are conceived, created, produced and marketed to respond to specific linguistic and cultural markets and tastes. In an EU of 28 Member States and 24 national languages (plus as many as 65 regional and minority languages), creative works need to be edited, curated, mediatised, adapted and promoted separately for each cultural market. This process requires substantial investment and cultural adaptation.” (1)
While some European thinkers expect economic added value can be created through an EU-wide approach, the content producers doubt whether there is enough demand for a European license to use, for example, for productions in the Dutch or Greek language. This could result in too high prices for countries in which the demand is low, in which case the product will not be bought by distributors, thereby leaving both consumers and rights holders dissatisfied. “Cross-border access to content is already a reality in the EU, when driven by consumer demand. According to a recent economic study focused on the audiovisual sector, however, the demand for foreign language TV programmes remains low and is limited to migrant populations or expatriates, representing only 3.3% of the total European population.” Creative Works! states. (2)
Harmonisation of limitations and exceptions
The second issue of the consultation concerns the harmonisation of copyright in the internal market and limitations and exceptions. Harmonisation of limitations and exceptions is welcomed by rights holders and is expected to benefit consumers as well. Rights holders that want to access several national European markets are hampered by the vast differences in the interpretation of the current limitations and exceptions. For example, the interpretation of the private copying exception is different in the Netherlands than in the rest of Europe. The same goes for the right of citation, which is much stricter in Germany than in most other European member states. For rights holders, it is very complicated and costly to fathom the interpretation of 28 different member states on the same limitations and exceptions. Harmonisation would lead to a level playing field and would thus create fair competition amongst member states.
With regard to enforcement, rights holders have shared concerns with the Commission. For example, broadcasts of live performances are often hit by piracy, leaving rights holders with little time to respond. Despite the assistance of intermediaries that operate notice-and-takedown procedures, valuable and popular content is often available through illegal sources within no time.
Promising market growth
Notably, rights holders seem to be confident that the basic principles of EU copyright are actually working quite well and have provided the necessary flexibility. The European content market is competitive and shows promising growth. Creative Works! therefore warns that “tampering with such a carefully-constructed copyright system requires careful consideration of the facts, giving appropriate weight to the evidence, and should be done with the strictest accountability.” The European Commission will now assess the input from stakeholders gathered during this consultation and, with the input from previous consultations and projects in mind as well, such as the Licenses for Europe project, draft new plans on the review of the legislative framework for copyright. In the weeks to come, we will regularly publish on this EU consultation as it may determine the future of copyright in the EU.
1: Multi-Territory Licensing of Audio-visual Works in the European Union – Study prepared for the European Commission, DG Information Society and Media; Kea and Mines Paris Tech; October 2010.
2: Why territories matter: Vertical restraints and portability in audiovisual media services; Olivier Bomsel and Camille Rosay; October 2013 – p. 38
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