Yesterday, the European Commission (EC) announced its Digital Single Market strategy, which LSE Visiting Fellow Monica Horten describes as an attempt by the Commission to change the way it addresses Internet policymaking. Here, she assesses what the announcement means for copyright in the European Union.
The European Commission announced yesterday radical plans to overhaul copyright policy. The proposals focus on users’ ability to legally access copyrighted content across borders, and they are understood to have upset the entertainment and music industries. This is not surprising since the changes will cut right through their copyright-supported distribution infrastructure.
The main plank for change will be the territoriality of copyright. Territoriality refers to the way that the entertainment industries are organised around national borders for the granting of rights and the distribution and sale of goods. On the Internet, this system is managed by asking intermediaries to block content that is not licenced in the user’s country – this is a form of geo-blocking. For example, that’s why YouTube videos are blocked with a message saying ‘not available in your country’. It’s also why Spotify is only available in some countries and not others. It is this geo-blocking that the Commission wants to stop.
Andrus Ansip, a vice president of the EC, made clear his dislike of this geo-blocking: “we can say clearly that geo-blocking is the main obstacle for companies and people. There are 100 million Europeans sitting at home wanting to get content from other countries, but can’t get it”.
Ansip agreed that the entertainment companies are not happy with his proposals. Such resistance on the part of the major stakeholders will create challenges for the Commission. Ansip can draft a proposal they don’t like, but if he does not get their agreement, they will attack the proposal when it moves on to the European Parliament. The copyright industries have been known to do this before, notably in the 2009 Telecoms Package (see my book The Copyright Enforcement Enigma or see my paper from 2008 Why we should protect ‘mere conduit’ and reject the copyright amendments).
Günther Oettinger, Commissioner for the Digital Agenda, seems somewhat more industry friendly, but I’m still not convinced that he fully understands the Internet copyright issues. The jury is out as to whether he or Ansip will win the internal battles.
The other major change for copyright proposed by the EC is to ensure that the rights to parody, quotation, and private copying are the same throughout all Member States. At the moment, they are not: for example, users may be able to legally cite a work in one country but not in another. The Commission is taking the perspective that this is a ridiculous situation and seeking to sort it out.
If the EC can draft workable rules on these two issues, Internet users will benefit as they will be able to take content legally on their smartphones from one country to another. However, this is actually not a new issue: it has been ongoing since 2005. The chances that it will be resolved this year, as the Commission has targeted, are slim.
A slight anomaly in the EU proposals is the inclusion of copyright with regard to databases and data mining for research. This is included because technically it falls under copyright law. However, in my opinion, this is less politically sensitive than the commercial distribution structures of the entertainment industries.
Intermediaries and copyright enforcement
The really hot potato concerns Internet intermediaries and copyright enforcement. This is one where the Commission will lose all its friends, if it is not careful. It’s a policy that is clearly being driven by the copyright industries and the Commission even repeats their language. It calls for three positive actions:
- One is to target “commercial scale” infringement, but the Commission fails to define what is meant by this term. Three years ago, a similar failure to define “commercial scale” was highlighted in the European Parliament regarding ACTA. One would expect that the Commission would not make the same mistake twice.
- The second action is to “follow the money”. Again, this is not defined and leaves it open to interpretation – for example, it could refer to closure of payment facilities by US-based financial payment companies (see EDRi’s commentary).
- The third proposal is to revive the Notice and Action directive. This directive was stalled in 2013, due to opposition from rights-holder lobbyists (see Notice and action directive to be blocked as EU backs down).
Any of these three proposals is likely to spark fierce political debate. These enforcement actions engage the right to freedom of expression under Article 10 of the European Convention on Human Rights. They do so because they entail the restriction or removal of content, and may only be implemented under appropriate supervision by the judiciary or the State. In that regard, the chances that the EC will release a proposal this year must be regarded sceptically.
Finally, blink and you’d miss it, but broadcast copyright has been slipped in at the last minute. This one is really interesting and it brings the proposals bang up to date. The issue of broadcast copyright is getting hotter as more people want to watch TV on their smartphones and tablets. It was addressed in the United States last year in the case of ABC v Aereo (see my article and paper on this case Copyright liabilities loom for cloud providers in wake of Aereo judgement.)
The total package would offer a major overhaul of EU copyright, giving wider rights to users of content, and new enforcement measures to rights-holders. However, the political sensitivity of the underlying issues – in particular, the engagement of free speech rights – means that the likelihood of all the measures appearing in a draft proposal in 2015 is very slight. Even to have a set of copyright measures agreed by all stakeholders by the end of the term of the current Commission is quite frankly, ambitious.
This post gives the views of the author and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics and Political Science.
“Commercial scale” is defined in Recital 14 of Directive 2004/48/EC on the enforcement of IPR. It was much discussed in the run-up to the enactment of that Directive.