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European Commission announces copyright reform agenda

By | Published on Thursday 10 December 2015


The European Commission yesterday set out its agenda regarding the reform of copyright rules across Europe as part of its grand and previously reported Digital Single Market strategy.

There were few surprises among the list of priorities, though the EC provided a little more clarification on what it was trying to achieve, and some information on next steps. There were four key areas: content portability, the harmonisation of some copyright exceptions, ramping up enforcement mainly via ‘follow the money’, and the clarification of ‘making available’.

For most of the entertainment industry – including movies, TV, books and sport – the content portability issue, or ‘geo-blocking’ as it’s usually referred to, is the big issue in the current review of copyright in Europe.

Basically the EC wants to ensure that a Netflix customer in the UK, say, can continue to access content as they travel around the European Union, whereas currently access to some or all content may be cut off as you move from one country to another, depending on the service’s licensing deals in the local market.

Many entertainment companies have issues with the demands being made on geoblocking, though the EC says it wants cross-border portability to be a reality by 2017. But such portability would only be available to those ‘temporarily resident’ in a country other than their own, which is a suitably vague statement to give the big rights owners wiggle room.

The copyright exceptions the EC wants to harmonise relate mainly to education and research, while the main anti-piracy priority is the expansion of the ‘follow the money’ approach – which is already used in the UK – across the rest of the EU. This aims to cut off the revenue streams of online pirates by ensuring they lose access to ad networks and payment systems. The EC is planning a Europe-wide code of conduct on such activity and could legislate if voluntary codes aren’t effective.

For the music community – and especially the artist community – the brief mention of ‘making available’ in yesterday’s document is perhaps most important. ‘Making available’ is one of the controls that comes with a copyright, and covers the ‘digital communication’ of a copyright work.

Although introduced in the 1990s, the exploitation of the ‘making available’ right by digital music services has become a talking point in the artist community in more recent years, because many in that community believe this new element of copyright has been interpreted and implemented in a way that favours record companies over recording artists.

The EC says it will examine whether clarification is needed at an EU level on when making available applies, how it should it be implemented, and how it relates to the traditional ‘communication’ control that has long been an element of copyright, and which covers traditional broadcast.

Corporate music rights owners, of course, are still hoping that the current review of the European copyright regime could also result in a rethink of the so called ‘safe harbours’ that protect technology companies whose customers store, distribute or share unlicensed content via their networks or servers. In particular, they want the laws changed so that services like YouTube cannot use these safe harbours to operate an opt-out rather than opt-in streaming service, something that, the labels say, results in a ‘value gap’ in the digital music market.

A review of safe harbours is not seemingly a key priority for the EC, according to the agenda published yesterday. Although, as part of the focus on enforcing copyright, beyond the aforementioned ‘follow the money’ programme, the Commission does plan to review the way takedown systems – whereby rights owners can demand infringing content be removed – are working, or not working as the case may be.

This includes “whether to require intermediaries to exercise greater responsibility and make more efforts in the way they manage their networks and systems”. Which is basically safe harbours. So, perhaps the labels could get their wish, while artists lobby on making available and getting more transparency around digital revenues.

Certainly indie label repping IMPALA still hopes to ensure the ‘value gap’ is considered as the copyright review goes through the motions. It’s boss Helen Smith said yesterday: “It’s time to get rid of friction in the licensing market, and particularly the so-called ‘value gap’. Some of the biggest online distributors of music are under-licensed or not licensed at all. We welcome the EU’s ambition to fix this and level the playing field. This will benefit all actors across the value chain and help grow the pie”.