The European Commission finally published its long-awaited Communication “towards a modern, more European copyright framework.” The Communication, serving as an action plan, outlines the different issues the European Commission is currently considering for legislative proposals to be adopted from spring 2016 onwards in areas such as limitations and exceptions, online platforms and enforcement of intellectual property rights (IPR).
The European Commission rightly points to the issue of copyright exceptions as the first topic to address. CDT welcomes that, in order to remove “national silos” and achieve a strong harmonisation of copyright rules in Europe, the European Commission acknowledges that limitations and exceptions need to be part of the discussion. A conversation focused exclusively on copyright protection and enforcement is fundamentally incomplete. In particular, the European Commission is right to recognise that the “lack of a clear EU provision on TDM [text and data mining] for scientific research purposes creates uncertainties in the research community”. The European Commission likewise acknowledges the importance of a “panorama exception,” a likely consequence of the report of the European Parliament on the “Harmonisation of certain aspects of copyright and related rights” of July 2015. This is a step in the right direction, as CDT does not see why copyright law should restrict a person’s ability to take photographs of historic, prominent, or recognisable public structures.
However, we are concerned about the Communication’s discussion of the role of online platforms when dealing with copyright-protected material. Firstly, we do not understand why the European Commission rushed into the publication of its Communication while there are still ongoing consultations on copyright issues such as geo-blocking and online platforms. CDT, together with relevant civil society and industry groups, raised concerns about this disjointed approach to addressing clearly related copyright issues. Addressing related issues in copyright at different times through different vehicles inhibits all stakeholders’ ability to contribute to deliberations and ensure their views are taken into account when the upcoming legislative proposals are presented in 2016. Secondly, the European Commission apparently wants to revisit the clear liability protections for intermediaries enshrined in the e-Commerce Directive when it is applied to these platforms. CDT has argued many times that the e-Commerce Directive provides the necessary tools to combat illegal content online and appropriately limits the obligations of intermediaries with respect to third-party content. In a world where all online speech is intermediated by web servers, news portals, social media platforms, search engines, and ISPs, the threat of liability creates strong incentives for content hosts to remove content, limit access to their services, and restrict users’ ability to communicate freely over their platforms.
We are also concerned about the European Commission’s plan to “consider whether any action specific to news aggregators is needed, including intervening on rights”. We find peculiar that it does not address so-called ancillary rights in the Communication, but does so in its Q&A document. The European Commission has assured that it “has no plan to tax hyperlinks,” but highlights that news aggregators do not only use hyperlinks but also extracts from articles and may gain revenue from this. CDT is concerned about this statement, as we already stressed the negative effects of such rights on smaller publishers, citizen journalism and, more importantly, freedom of information.
In addition to the publication of its Communication, the European Commission has also announced a new proposal for a Regulation on “ensuring the cross-border portability of content services in the internal market.” The proposed regulation on portability will allow consumers to use their online subscriptions from their Member State of residence when they stay temporarily in another Member State. CDT is reviewing the Regulation and, in general, supports efforts to empower users to access content in the time and place of their choosing, especially when they already have a paid subscription for that access.
Separately, the Commission announced yet another public consultation on the evaluation and modernisation of the legal framework for the enforcement of IPR. The public consultation on the enforcement of IPR is asking stakeholders to provide their views on the functioning and the use of the Directive on the Enforcement of Intellectual Property Rights (IPRED). CDT will contribute to the public consultation, which closes on 1 April 2016, and encourages other organizations representing Internet users and innovators to make their voices heard as well.