In his speech on the State of the Union 2016, the President of the EU Commission stated the following:
“I want journalists, publishers and authors to be paid fairly for their work, whether it is made in studios or living rooms, whether it is disseminated offline or online, whether it is published via a copying machine or commercially hyperlinked on the web.”
In this way, the President pointed out an important problem that the Commission wishes to deal with. On 14th September 2016 he presented proposals for the modernisation of copyright rules. The aim is the adaptation of copyright laws to the current reality of the latest technologies, especially taking into account the Commission’s plans regarding the Digital Single Market.
The Commission seeks to tackle the mission of promoting cultural diversity in Europe and the availability of online contents. For this objective, he proposes stipulating clear regulations for all online agents. Furthermore, the proposals contain tools for the introduction of innovation in education, investigation and cultural heritage institutions.
The latest technologies are represented by online services such as music streaming, video-on-demand platforms and news aggregators, which are being used increasingly by consumers. In view of the strategy of the Commission where the Digital Single Market is concerned, it is a matter of facilitating the cross-border availability of the aforementioned media within the European Union. To this end, rules which offer clarity and legal security for all parties must be established.
The proposals adopted by the Commission are geared to promote:
– Better choice and availability of online contents.
– Regulations regarding improved copyright for education, investigation, cultural heritage and the inclusion of disabled persons.
– A fairer and more sustainable market for creators, creative industries and the press.
Andrus Ansip, Vice President of the Commission in charge of the Digital Single Market stated, “Europeans want cross-border access to our rich and diverse culture. Our proposal will ensure that more content will be available, transforming Europe’s copyright rules in light of a new digital reality. Europe’s creative content should not be locked-up, but it should also be highly protected, in particular to improve the remuneration possibilities for our creators. We said we would deliver all our initiatives to create a Digital Single Market by the end of the year and we keep our promises. Without a properly functioning Digital Single Market we will miss out on creativity, growth and jobs.”
It is true that almost half of all EU internet users listen to music, watch films and tv series and play games online, however, broadcasters and other operators still experience problems with offering their contents on a cross-border basis within the EU. This is due to the difficulty of acquiring the respective rights. Also, this is a hindrance to digital innovation in the economically and socially important areas of education, investigation and cultural heritage. The difficulty in using contents protected by copyright, also across borders, often means that authors, other holders of rights and editors of the press are not able to negotiate payment conditions and the payment for the online use of their works and performances.
The Commissioner for the Digital Economy and Society, Günther Oettinger said: “Our creative industries will benefit from these reforms which tackle the challenges of the digital age successfully while offering European consumers a wider choice of content to enjoy. We are proposing a copyright environment that is stimulating, fair and rewards investment.”
To counteract the restrictions and legal insecurity which have existed up until now, the proposals contain three main points:
- Better choice to content on line and across borders
The aim is to implement a legal mechanism which shall allow broadcasters to obtain more easily the authorisations they need from right holders to offer programmes online in other EU member states. Said legal mechanism concerns services such as AtresPlayer in Spain or ZDF Mediathek in Germany.
Furthermore, the new regulations shall facilitate the obtention of necessary authorisations for operators who offer packages of channels (for example Movistar+ in Spain or IPTV Entertain in Germany).
For the purpose of reaching agreements between holders of audio visual rights and video on demand platforms regarding the granting of licences, EU member states have been asked to set up negotiation bodies.
To enhance the access to Europe’s rich cultural heritage, the new directive shall help museums, archives and other institutions to digitise and make available across borders out-of commerce works. Furthermore, the Commission shall make use of more finance for the support of the cross-border transmission of creative contents.
- Improvement in the regulations regarding copyright in investigation, education and the inclusion of disabled people
The existing restrictions related to copyright make the use of digital materials in learning and education difficult. The Commission proposes an exception to allow educational institutions to use materials to illustrate teaching through digital tools and online courses across borders.
Furthermore, it aims to give researchers across the EU the use of text and data mining (TDM) technologies to analyse large sets of data.
Finally, another exception has been established allowing cultural heritage institutions to digitally preserve works.
Regarding disabled citizens, the commission is proposing legislation to implement the Marrakesh Treaty aimed at facilitating the access to published works for persons who are blind, have other visual impairments or have other difficulties in accessing printed text.
- A fairer and more sustainable market for authors, the creative and cultural economy and the press.
The new directive seeks to reinforce the position of right holders in negotiations. It is understood that platforms wishing to offer their works are obliged to use efficient technology to find songs or other audio visual works which right holders have authorised or refused.
The difficulties faced by the press publishers regarding the granting of licenses and their rights regarding their works published online are met by the introduction by the Commission of a right to protection for press publishers, similar to the right that already exists for film producers and other players in the creative and cultural industries. Thus, the position of press publishers is strengthened in negotiations on the use of their content with online services and better conditions for the fight against piracy are created.
The proposed Directive also contains the obligation of editors and producers to be transparent and inform authors and artists regarding the profits made from their works. It is hoped that said transparency together with another new mechanism will help artists and authors to obtain fair remuneration when they negotiate with producers and publishers.
It is intended that the measures proposed by the Commission shall improve the availability of the richness of cultural diversity in Europe and thus bring citizens closer to the cultures of other European countries, such as giving them the opportunity of staying near to their home country, when living abroad in Europe.
Pina Pohl
Vilá Abogados
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21st October 2016
