The French Presidency of the Council of the EU (FPEU) submitted to Member States, on Wednesday 25 May, its draft report on the effectiveness of the European copyright framework. This draft report follows on from the questionnaire that the FPEU submitted to the Member States on 13 January 2022, in which Member States were asked to comment on the circumvention of European copyright rules and the promotion of the interests of European authors in a globalised environment.
The draft report, which takes up the responses and analyses of the Member States, first of all points out that practices of circumvention of copyright protection provisions are unanimously observed throughout the EU.
Even if practices differ from one Member State to another, they share the same observation that platforms or search engines often impose an unbalanced remuneration model on European creators.
Several distinctions also appear in sectoral terms, with players in the audiovisual, music and publishing sectors being the most affected.
In detail: the draft report stresses that platforms or search engines regularly refuse to apply an exclusive right and prefer to resort to exceptions - notably for quotations or educational purposes - even if it means going beyond the framework of these exceptions.
Member States also point to practices imposing free licences or bundled remuneration for a package of services, thus not isolating the specific consideration for the transfer of copyright.
The text also points to the fact that licences sometimes imply a waiver of certain copyrights, that platforms redouble their efforts to circumvent collective agreements that should guarantee creators’ remuneration and that they “systematically propose contracts under foreign law, and often by US law”.
Copyright Directive, DSA and DMA among potential solutions
Several Member States have also pointed to other widespread practices among platforms to circumvent EU legislation, such as disclaiming responsibility for illegal content sharing or introducing unfounded contract termination clauses.
These practices, which “crystallise the unequal positions between platforms and creators”, have increased sharply over the past 2 years, due to the health crisis, the paper reports.
In addition to the measures taken by national authorities - the importance of which was recalled in the contributions of the Member States - several strategies are envisaged to solve all or part of this problem.
Among the potential avenues, some Member States call for waiting for the effects of the transposition into national law of the Directive on copyright and related rights in the Digital Single Market (2019/790).
In addition, consideration could be given to giving collective management organisations the power to forward anonymised contracts infringing the Copyright Directive to the European Commission.
Finally, a majority of Member States indicated that they were in favour of exploring solutions within the EU, while retaining national provisions on competition law.
Some Member States also insisted, among other things, on assessing the effectiveness of the Digital Markets Act (DMA) (see EUROPE 12955/9) and the Digital Services Act (DSA) (see EUROPE 12938/6) before promoting a new initiative, “in order to avoid over-regulation and not unnecessarily restrict contractual freedom”.
See the document: https://aeur.eu/f/1vt (Original version in French by Thomas Mangin)