Brussels, 03/07/2014 (Agence Europe) - The provisional White Paper on copyright, due to be presented very shortly (most probably on 23 July), it is now in the hands of the different Commission Directorates General, as part of the inter-service consultation. A provisional version of the document now in circulation provides a clearer insight into the Commission's intentions regarding possible action in the medium and long term for modernising copyright in the digital era.
Cross-border content. There is a clear determination to facilitate access to cross-border level content, which poses the question of the territoriality of rights. In the provisional version of the White Paper, the Commission recognises the need to further develop the debate on the definition and exercise of rights, as well as on the putting of content online. Several possible avenues are put forward in the preliminary analysis: either applying copyright on the basis of the country of origin (where they were put online) or on the basis of the laws of targeted regions (according to a decision made by the European Court of Justice - CJEU), or replacing current national laws with a single European copyright. There is also the question of portability of rights in an era of subscriptions to tablets and mobile phones (contract law). With regard to the question of when these rights expire (in cases of second-hand sales of digital books, for example), the Commission believes that it is too early to tackle the subject but is, nonetheless, planning on analysing the situation.
Digital content. The White Paper also calls for reflection on updating copyright in the digital era. The document suggests that it is necessary to clarify rules on hyperlinks and surfing the internet, in an effort to put an end to legal uncertainties, with the CJEU having had to make a number of decisions on these questions. The draft White Paper also opens the door to the reorganisation copyright exceptions included in the different directives and applied in a variety of different ways by the member states. The Commission is afraid that this patchwork set-up is hampering activities connected to the creation of content and causing market fragmentation. The Commission could provide guidance to member states in the application of exceptions and is not ruling out the possibility of assessing how these exceptions work. There is also a concern that 28 different jurisdictions will emerge in the long term. The European Commission would therefore be in favour of creating a specialised European jurisdiction for copyright. This would also involve clarifying exceptions for content generated by users and made available on internet platforms, particularly with regard to any parodies or criticism is in this connection. The White Paper is recommending a balance between copyright and the provision of public services. Several exceptions for education, preservation of cultural heritage and research (text and data mining) will be considered, according to recommendations in the draft.
Value chain. The provisional version of the White Paper devotes a chapter to rebalancing the value chain in content creation (creators, distributors and users). Initially, the Commission is expected to support sectoral initiatives to identify work and generate data. The project believes that, at this stage, a European register raises too many practical and legal questions and would require a more thorough analysis. Particular attention is also paid to the fair remuneration of authors and artists, which is essential for encouraging artistic production. Legislative action to this effect, however, is only envisaged at a later stage.
Ten or so directives affected. These would be the guidelines at this stage in the White Paper, whose proposals are likely to further evolve over the next few days, on the basis of the inter-service consultation. A Commission source close to the dossier stressed that the White Paper is one “stage in a (longer) process” of modernisation of copyright. This same official admitted, however, that the document could pave the way to the recasting of around ten different directives, including those on contracts, online content (safe harbour), InfoSoc, etc. “But at this stage we are not yet entering into this discussion but rather looking at what the questions are and the requests of stakeholders”. The White Paper appears more like a “starting point” which will need to be put into practice by the new Commission. It will also help “structure the debates” at the new European Parliament, added the same source, as that MEPs will thus be able to begin their debates on the substance and not on the challenges, too sensitive for the moment.
Stakeholders, however, fear that a White Paper at the end of a mandate might lack ambition, so as not to excessively limit the room of manoeuvre for the incoming commissioner for the internal market. Some also have concerns that the inter-services consultation will further water down the content of the final White Paper. (MD)