Only a couple of days after the Commission announced its Roadmap and Inception Impact Assessment for the modernisation of the EU copyright framework, the draft Communication of the Commission was leaked. What was supposed to be a full legislative proposal, became a Communication announcing a future proposal in spring 2016.
The EU copyright policy has been a very dynamic arena for the past couple of years, with all categories of stakeholders finding their way to express concerns, support their various interests and share best practices or suggested solutions. At first glance, the Communication has the merit that it addresses mostly all of the issues which surfaced in these debates, which makes it a comprehensive document. However, merely acknowledging those issues is far from a guarantee that the Commission will address them in a satisfactory way.
Although the Commission is considering to strengthen the exception of text and data mining through the means of legislative proposals by spring 2016, the fact that it looks set to limit these permitted mining activities to ‘public interest organisations’ and to ‘scientific purposes’, seems inconsistent with the ‘legal certainty’ which it promises in the very same paragraph. Besides the fact that the definition of these terms is still to be debated, unfortunately the Communication does not address the cases of citizens, scientists and companies. It also leaves unaddressed the fact that much scientific research today happens in partnerships with private companies or is funded from public-private funds.
Another issue is that the Communication says that any proposals would “take into account the relevant market situation and licensing practices for the uses concerned”. This could be read to anticipate or permit TDM-specific licence, which would come on top of licences for access to content. The failure of the Licences for Europe stakeholder dialogue of 2013 and calls from the research community to make “the right to read the right to mine” (see notably the Hague Declaration) have shown that this is not an acceptable option.
These two topics, covered in the same section, raise a number of issues.
As far as news aggregators are concerned, the Communication seems to want to redefine the notions of ‘communicating to the public’ and ‘making available’. It is those acts of communication to the public which have been defined and addressed in previous CJEU case law and it is on those acts that creators and creative industries can claim rights and negotiate licenses and remuneration. Besides redefining such essential legal concepts, we could also be presented with the emulation of the Spanish and German ancillary copyright cases. Although the Communication points to the risks of fragmentation of such initiatives, it does not entirely acknowledge the failures of ancillary copyright as proposed in these Member States.
Regarding online platforms, the Commission seems to be waiting for the results of the public consultation on online platforms, which closes in December. There is an open debate about whether platforms are mere passive actors, offering hosting for content, without engaging in copyright-relevant acts, in which case they would not be subject to copyright provisions. The Communication seems to point at an attempt to include proposals which would reduce both the scope of this liability exemption foreseen in the e-Commerce Directive, as well as its application. Whether the Directive will be opened is still not clear, but there seem to be indications that it will not.
After months of reflection and assessment, the Commission promises to come forward with specific legislative proposals on the identified issues. It is also important to consider the form of these proposals. The report from the EP’s internal research services suggests four options when it comes to the form of modernisation of the EU copyright framework: codification in one single document of all copyright-related legislation, recasting the Copyright Directive, further harmonisation of specific issues (which means having distinct legal instruments per issue, as is the case currently) or a single EU copyright title. The EP’s own initiative report adopted in July 2015 is the first EU document officially to mention such title.
What is interesting to see is that the Communication dedicates substantial reflection around the first and fourth of these options. Even more interesting is the positive wording of such options, albeit only for the long-term. Taking the example of the creation of single titles and single rulebooks in other IP areas, like trademarks and patents, the Commission points to the fact that complexities should not be a reason to relinquish such ambitious goals as a single copyright code or EU copyright title.