A closer look at the public consultation on the review of EU copyright rules

Wait a moment:
Another consultation on copyright?!

As the IPKat announced, yesterday the EU Commission launched a Public Consultation on the Review of EU Copyright Rules.

The stated objective of this consultation is to see how to ensure that "the EU copyright regulatory framework stays fit for purpose [this is one of those terms of phrase which are consistently and - quite frankly - unoriginally employed in copyright reform debates these days] everywhere in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity."

This initiative is part of the Commission's two-pronged approach to review copyright [the other being the recently concluded "Licences for Europe"], as spelled out in last years' Communication on Content in the Digital Single Market.

But what is the Commission seeking stakeholders' feedback on? In a nutshell: everything, but in particular the following.

Why is it not possible to access many online content services from anywhere in Europe? 

Yep, this is the first question. Although Merpel wonders whether its preeminence may be due to personal concerns of those many expats living and working in Brussels, this issue goes well beyond the sole ability of watching MasterChef Italia [one of this Kat's favourite TV shows] outside Italy. It actually touches upon segmentation of the market for licences and - above all - territoriality of copyright laws. With regard to the latter: should this practical [rather than theoretical] feature of copyright be superseded in what we want it to be an EU "single" market? [to this effect, see last question below]

Why can't you watch MasterChef Italia
outside Italy?

Is there a need for more clarity as regards the scope of what needs to be authorised (or not) in digital transmissions?

More in detail:

1. Should the right of making available to the public be clarified further, in particular with regard to what it covers and where the act of making available takes place? This is a question which - among other things - touches upon intention to target approach vs accessibility criterion, as recently discussed by the Court of Justice of the European Union (CJEU) in Case C-170/12 Pinckney [see here, here, here and here].
2. What happens when two exclusive rights are involved in a single act of exploitation? Is this a problem?
3. Should hyperlinking and browsing fall within the scope of copyright protection? Again, this is another question which calls into consideration references for a preliminary ruling (still pending) before the CJEU: Case C-466/12 Svensson [here], Case C-279/13 C More Entertainment [here], and C-348/13 BestWater [here] for hyperlinking, and Case C-360/13 Meltwater [here] for internet browsing.
4. Digital exhaustion: should you own your downloads? As IPKat readers may recall, this is an issue which is particularly close to the mind and heart of this Kat, especially following last year's CJEU decision in Case C-128/11 UsedSoft [here, here, here, here, here, here ...]

Registration of works and reinstatement of some formalities

Although existing international treaties [see Article 5(2) of the Berne Convention] prohibit formalities as a condition for the protection and exercise of rights, the Commission notes that this prohibition is not absolute, and the EU has already taken steps to provide for some sort of formalities, the most significant example being Article 3(6) of the Orphan Works Directive.

There are times when reinstating some formalities
might actually help you

Earlier this year, this Kat was very much intrigued by the proposal advanced by US Register of Copyrights Maria Pallante in the context of US copyright reform debate: since Berne imposes a minimum term of 50 years post mortem auctoris, and US law has a term of 70 years, Berne no-formality rule would not apply to the final 20 years of protection, thus allowing the US to require rights owners to assert their continued interest in exploiting the work. Rights owners could be thus required to register with the Copyright Office, otherwise the work would enter the public domain.

By the way, for those interested in formalities, here are two books well-worth exploring: the fascinating must-read How to Fix Copyright by William Patry and (specifically on the history and legal developments of formalities) Formalities in Copyright Law by Stef van Gompel.

How to improve the use and interoperability of identifiers?

This would be mainly to facilitate licensing, although it may be also a tool to reduce the orphan works problem.

Term of protection: is it appropriate?

This Kat suspects that most answers to this question will be in the negative, but how realistic is it to think of harmonising copyright duration downwards?

Limitations and exceptions

Can a greater degree of flexibility be introduced in the EU and Member States regulatory framework while ensuring the required legal certainty, including for the functioning of the Single Market, and respecting the EU's international obligations?

More in detail, exceptions and limitations to be considered are those for library and archives (including mass digitisation), teaching, research, people with a disability, text and data mining [which the Commission has already attempted to approach in the context of "Licences for Europe"], user-generated content, private copying, reprography and levies.

Fair remuneration for authors and performers

This is an area that has been traditionally left to Member States to regulate, but should the EU intervene?

"I dream of an EU copyright title"

(Civil) enforcement, fundamental rights and intermediaries' liability

With particular regard to intermediaries: is the current legal framework clear enough to allow for sufficient involvement of intermediaries in inhibiting online copyright infringements with a commercial purpose?

Finally: should the EU adopt an EU-wide copyright title?

This Kat thinks that this would be the best solution to complement what is already a single market for copyright-related products and services ...

Overall, Merpel is a huge fan of public consultations. However, she notes that in some significant instances the questions posed draw upon cases that have been or will be decided shortly by the CJEU, which - in doing so - has interpreted/will interpret existing EU and international legislation. While in many cases the Consultation asks you to respond 'yes' or 'no' as if the Commission could decide to do either way, Merpel suspects that it may not be that easy to think that any winning option could actually translate to workable legislative initiatives ...