Understanding The EU’s Efforts On Harmonization Of Copyright Laws: The European Commission’s Communication Towards A Modern, More European Copyright Framework

This article is part of a series where we will explore the EU’s efforts towards harmonization of copyright laws across the EU, including directives, CJEU decisions, and more.

In 2015, the European Commission (“EC”) issued a communication to the European Parliament, Council, European Economic and Social Committee, and Committee of the Regions towards a modern, more European copyright framework (“Communication”). The EC’s Communication aims to promote the harmonization of copyright rules across the EU, adapting copyright rules to technological developments, and establishing a single digital market to facilitate cross-border portability of creative content.

The EC recognized that copyright law plays a significant role in encouraging creativity, investment in creative content, and how production, distribution, and use of works generate value. In light of the increasing importance of copyright law in the digital environment, the Communication towards a modern, more European copyright framework came as the first step towards harmonization of copyright laws across the EU.

Issues identified by the EC

The EC identified several issues arising out of a fragmented market for creative works and the disruption caused by online content dissemination and consumption. The following are the issues discussed in the Communication:

Lack of access to content across the EU: The EC highlights that the current copyright rules are not adapted to the digital environment, unlike the Directive on Satellite Broadcasting and Cable Retransmission (93/83/EEC), which already provides for cross-border distribution. The territoriality of rights impedes multi-territorial licensing and cross-border access to content. The EC also notes that the disconnect between production, circulation, and access impacts the market-readiness of works. As a result, there is a need to adapt copyright rules to technological developments to ensure that consumers have access to content across the EU.
Fragmented exceptions under copyright rules: The EC notes that the current copyright rules and the exceptions to these rules are fragmented and create uncertainties. The exceptions are not clearly defined, are different across borders, and have territorial limitations. Therefore, there is a need to reassess and harmonize the exceptions under copyright rules to ensure that they are consistent across the EU. The EC also highlights that discriminatory practices and the lack of transparency in connection with the levies payable to right holders cause distortions in the entire market, which need to be addressed.
Lack of certainty and transparency in the distribution of remuneration: The EC highlights the lack of transparency in the distribution of remuneration to right holders. There is also no clarity on the scope of ‘communication to the public’, which has led to uncertainty in the market, including on the Internet. Therefore, there is a need to ensure that creators are fairly remunerated for their work and that the meaning of ‘communication to the public’ is clarified to maximize fair revenue distribution.
Lack of a balanced and effective enforcement system: The EC notes that, at present, commercial-scale infringement of intellectual property is detrimental to right holders and the EU economy. The enforcement mechanisms currently in place are not capable of addressing the challenges faced in a digital single market. Therefore, the EC states that there is a need to strike a balance between the interests of right holders and users and to ensure that an effective enforcement system is established.

Solutions proposed by the EC

The EC proposed several solutions to address these issues towards greater harmonization of copyright laws across the EU. The following are the solutions discussed in the Communication:

Cross-border access to content: The EC proposes facilitating cross-border access to content by regulating the portability of online content services, enhancing cross-border distribution of TV and radio programs, supporting the digitization of out-of-commerce works, and cross-border content licensing. Under the ‘Creative Europe’ program, the EC intends to create catalogues of European films, develop licensing hubs to facilitate cross-border licensing, support European aggregators of online search tools, promote funding for dubbing and subtitling, and increase support for the audio-visual industry, including the animation sector.
Harmonization of exceptions under copyright rules & distribution of Levies: The EC proposes to harmonize the exceptions under copyright rules in connection with access to knowledge, research, and education to ensure that they are consistent across the EU and effective in the digital environment. The EC also intends to increase the harmonization of copyright laws by mandating the adoption of certain exceptions across EU Member States. The EC states that it will consider methods for the effective distribution of levies to right holders and seek to resolve issues such as double payments, lack of transparency, and discrimination in the distribution of levies.
Transparency in the distribution of remuneration: The EC proposes to ensure transparency, certainty, and balance in the distribution of remuneration to authors and performers. The EC intends to revisit the meaning of ‘communication to the public’ and examine the effectiveness of alternative dispute resolution methods to develop effective policies across the EU.
Effective enforcement system: The EC proposes to ensure an effective enforcement system by introducing measures such as the ‘follow-the-money’ mechanism to deter infringing activities. The EC seeks to clarify the rules for identifying infringers, applying provisional and precautionary measures, calculating and distributing legal costs and damages, and determining cross-border effects of injunctions.

The European Commission’s Communication contains many solutions to the issues in the EU copyright law framework in light of cross-border content consumption in the online environment. The EC seeks to facilitate a dialogue among the Member States to bring about a mutual understanding and convergence of copyright law in the EU. The establishment of a single copyright code and title, along with the uniform application of the rules, is a step towards the EU’s long-term vision of ensuring that right holders and consumers in the creative industries are all governed by the same laws and rules despite where they are in the EU. Pursuing this vision can result in a single market across the EU and contribute to a prosperous creative sector in the EU economy.

The full text of the European Commission’s Communication towards a modern, more European copyright framework can be accessed here.

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Understanding The EU’s Efforts On Harmonization Of Copyright Laws: The European Commission’s Communication Towards A Modern, More European Copyright Framework

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