1./2. THE COPYRIGHT CONSULTATION
One of the highest participation rates ever demonstrated: Copyright reform is important to voters. They demand over-whelmingly an EU-level solution to the cross-border problems and legal uncertainty they encounter in their daily lives related to copyright.
3. Strengthen authors’ rights
One of the biggest challenges for authors in the changed online environment is negotiating fair contracts with rights holders and intermediaries. Here the EU can do more to protect authors’ rights.
A decisive siding with creatives which […] can only be supported from the creators’ side.
—German artist coalition Initiative Urheberrecht on the report
Most artists seeking to earn a living from artistic expressions must negotiate copyright licences with corporations to commercialize their works. Those contractual exchanges are often marked by an imbalance of power between the parties. Corporations may leverage a stronger bargaining position to retain most of the resulting profit, reducing benefits for artists. Copyright policy can help protect authors from such vulnerability. […]
States should protect artists from exploitation in the context of copyright licensing and royalty collection […] through legal protections that may not be waived by contract.
Concern has been expressed about coercive contracts that authors and artists identify as a primary obstacle to fair remuneration. Under such contracts, which are frequent, creators sign away all their rights to their creation in order to gain a commission for creating a work. Consequently, they lose control over their creation, which can be used in contradiction to their own vision. […]
On all these issues, artists are reluctant to enter into lengthy and costly judicial proceedings against corporations, which in turn can be a deterrent to artistic creativity.
Several amendments will be tabled on specific improvements which could not be included in the draft report due to space constraints.
4. Single European Copyright Title
The cleanest solution to the fragmentation of EU copyright is the introduction of a single European title, like the European patent and the European trademark (but replacing national titles). This long-term goal would benefit both rightholders and users: While the former would have a more unified basis of protection, the latter would gain more legal certainty in their cross-border uses.
The vast majority of end users/consumers consider that the EU should pursue [this] idea [which] would enhance legal certainty and transparency for right owners and consumers [and] reduce transaction and licensing costs related to the clearance of rights […] The vast majority of institutional users are also generally in favour [as well as] a significant number of authors/performers
—EU copyright consultation report
5. Public Works belong to everyone
The report recommends: Works created by employees of government, public administration and the courts as part of their official duty should be in the public domain.
This would also prevent copyright from being abused as an obstacle to public access.
Example: In 2014, the German Ministry of the Interior tried to argue that a citizen could not publish the response to their Freedom of Information request online due to copyright reasons.
6. Safeguard the public domain
The public domain is comprised of works whose copyright has expired or to which copyright never applied, and yet digital versions of public domain art are often adorned by copyright symbols today – under the claim that digitisation grants new copyright protection to public works.
Nine Member States reported obstacles in ensuring that public domain material remains in the public domain after digitisation […] the legal stand of some digital reproductions of public domain works lacks clarity and requires further attention.
—EC report Cultural heritage: Digitisation, online accessibility and digital preservation 2011-2013
The report recommends: Clarify that digitisation does not grant new copyright protection to works that were previously commonly owned.
Also, it is often unneccessarily hard for artists to voluntarily release a work into the public domain or under a liberal license due to restrictive publishing contracts or collecting society inflexibility.
The report recommends: Recognise the autonomy of artists to release works the way they want, including into the public domain.
7. Harmonise copyright terms
To determine whether a work is under copyright, one has to research obscure facts like whether its author died for France in the war (in which case longer protection terms apply).
Drastically divergent terms of protection may attach to the same information product depending on the jurisdiction … The result is a legislative framework that makes cross-border rights clearance calculation difficult, hampering end-users and cultural heritage organisations
—The Myth of European Term Harmonisation: 27 Public Domains for the 27 Member States
The vast majority of works are commercially exploitable for a shorter time than their copyright protection lasts. As a result, many works are unavailable, causing a “20th century hole” in the market and in archives alike. For most works, long copyright protection does not ensure increased author remuneration – but it does decrease their availability.
Positive macroeconomic effects can only be documented for short protection terms of below about 30 years.
—Gutachten 2015, Expert Commission for Research and Innovation, instated by the German government
The vast majority of end users consider that the current terms of copyright protection are inappropriate. … Institutional users generally believe that the current terms […] should be shortened. … Some broadcasters […] think that the term is too long … The vast majority of intermediaries and service providers consider that the term of protection is too long.
—EU copyright consultation report
The report recommends: Harmonise protection times to the international standard of life+50 years.
8. Balance interests
The InfoSoc directive aimed to achieve a balance between all the parties concerned, including authors and performers, other rights holders, users of copyright protected works and the general public. Exceptions and limitations are an important element of providing this balance. Their examination in light of technological and social progress is the main focus of the next paragraphs of the report.
9. Equal rights on- and offline
As the analogue usage environment is gradually replaced by a digital one it is necessary to ensure that the purpose behind exceptions and limitations is continued to be fulfilled as usage practices change. Otherwise, the rights granted to the public are gradually eroded over time.
Example: If the education exception allows a teacher to provide every student with a physical copy of a particular text as reading material for class, they should also be able to provide students access to the same text in a digital format through a school intranet.
10. Impact on cross-border exchange
As cross-border usage grows, the impact of differences in copyright exceptions and limitations is increasingly negative for the completion of the Digital Single Market.
Documentary filmmakers require freedom to use specific images, video clips or music necessary to tell a particular story. Depending on a country’s exceptions and limitations regime, those artistic practices may be clearly defined as permissible or may occupy a legal grey zone that makes it difficult for creators to commercialize and distribute their works.
—UN Report Copyright policy and the right to science and culture
This especially affects projects to foster the communication between countries, such as the German-French television broadcaster arte.
11. Make exceptions mandatory
The exceptions and limitations outlined in the InfoSoc directive have been tested in individual member states and have proven not to be detrimental to authors’ material interests. Yet their implementation is currently optional. Only when the same exceptions apply in each country can they benefit the public in cross-border contexts.
End users/consumers consider that the optional nature of the list of exceptions creates legal uncertainty and an uneven playing field for market participants. … Institutional users generally support copyright harmonisation which implies making exceptions mandatory … Many respondents from [the Intermediaries/distributors/service providers] group argue for more harmonisation and legal certainty in the area of exceptions. … Representatives of academia, civil society or think-tanks generally consider that the optional nature of the exceptions is problematic and that exceptions should be further harmonised.
—EU copyright consultation report
The report recommends: Make copyright exceptions mandatory across member states.
12. Welcome transformative creation
The phone in your pocket is a computer more capable of multimedia production, equipped with a better camera, than most professional artists had access to when the InfoSoc directive was written. Along with the Internet as a zero-cost global publishing medium, this phenomenon has brought about a broad creative revolution, enabling a wealth of emerging practices in which new works are created by transforming existing ones.
Examples: Such practices, often exercised without any commercial goals, include: Audiovisual remixes and mashups (like songs created from dozens of found video clips), lip dubs (creative reenactments of songs), supercuts (assemblies of similar movie scenes), mods (modifications and conversions of computer games, for example to change the characters or add new environments), remakes of/hommages to out-of-commerce classics, Machinima (movies recorded using game environments as the “studio”), Let’s Plays (live video transmissions of computer gaming sessions), and many more.
Despite not interfering with the commercial exploitation of works, these works are surrounded by legal uncertainy:
Respondents demonstrated confusion, anxiety, and fear when asked about their copyright behavior
—User-Generated Video Creators on Copyright [Aufderheide 2007]
Copyright legislation should not stand in the way of this unprecedented wave of emerging creative expression and should recognise new creators as valid cultural actors and stakeholders.
13. Add a future-proof Open Norm
States have a positive obligation to provide for a robust and flexible system of copyright exceptions and limitations to honour their human rights obligations. The “3-step test” […] should be interpreted to encourage the establishment of such a system of exceptions and limitations.
—UN Report Copyright policy and the right to science and culture
The reform of EU copyright rules takes a long time. Fourteen years have passed between the introduction of the InfoSoc directive and this evaluation. The directive refers to now-obsolete technology like CD-ROMs. It’s safe to assume that technological development will continue to be faster than the legal system can adapt.
An open norm would give courts the possibility to allow future uses that pass the international standard 3-step-test:
- A special use of a work…
- …that does not conflict with its normal exploitation…
- …and does not unreasonably prejudice the legitimate interests of the author
This open norm differs significantly from the US “fair use”, because it applies additionally to a specific list of exceptions and limitations and does not replace them. It is a fall-back mechanism to give the exceptions and limitations the necessary flexibility over time and make them future-proof.
The vast majority of institutional users favour increasing the flexibility of exceptions in EU copyright law, and most often see the solution in the introduction of [an] open norm, in addition to the list of specific limitations. … Many consumers suggest adding an open norm to the current list of exceptions to permit uses that could not be foreseen at the time of the adoption of the legislation. … some [Member States] consider that some of the existing exceptions are not technology neutral hence an extension to ‘‘‘similar uses’’’ or another type of open norm could be considered. … A small fraction of authors and collective management organisations argue that making the list of exceptions open-ended could help EU law keep pace with technological change. … Other [academics] argue that adding an open norm to the existing list of exceptions would be the best means to ensure that the relevant legislation is future-proof.
—EU copyright consultation report
14. Allow audio-visual quotation
While almost all countries have a copyright exception for quotation, the interpretation of what qualifies as a quotation is different between member states. This causes problems as text, audio and visual material is increasingly used interchangeably because of media convergence.
Example: A recent UN campaign video was taken down because it included a brief copyrighted clip (an audio-visual quote) of its celebrity spokesperson.
The report recommends: Clarify that exceptions like the one for quotations apply to all forms of cultural expression in a technology-neutral manner.
15. Allow Linking
The ability to link from one resource to another is the basic building block that enables the Internet. By definition, content that you can link to is publicly available. Somebody who links to a website has no control over the content at the other end. A link therefore can’t require rightholder authorization or imply liability. Putting such a “price tag” on linking would unduly interfere with people using the Internet in a most basic way.
The vast majority of end users/consumers […] the vast majority of institutional users […] most service providers […] consider that hyperlinks to a work or other protected subject matter should not be subject to authorisation by the rightholder.
—EU copyright consultation report
The report recommends: Clarify that referencing to works by means of a hyperlink is not subject to exclusive rights.
16. Copyright-free public space
Freedom of Panorama means that anyone can take pictures of public buildings and distribute them without permission of the architect – but it is not or only partially implemented in many member states.
Example: While it is legal to take a picture of the Eiffel Tower during the day (because its copyright has expired) that is not the case at night, because there is an independent copyright protection of the Eiffel Tower’s light show.
Due to the territoriality of copyright, an image legally taken under Freedom of Panorama in one country may be illegal to distribute in another. For people sharing their holiday pictures after traveling to another member state, this is incomprehensible.
The report recommends: Improve legal certainty of everyday activities by adding an exception for full panorama freedom across Europe.
17. Allow caricature & parody
The exception for caricature, parody & pastiche is essential for freedom of expression and should be made mandatory.
Allowing pastiche (imitations of an existing work or its style) enables a number of remixing activities that have emerged along with new technologies. It strikes a better balance between authors’ rights to commercially exploit their works and their artistic freedom to build upon the works of others.
In a recent ruling, the European Court of Justice provided important clarifications on the definition of parody. However, it also problematically called for weighing the interest of the parodist against that of the rightholder (not the author, who had passed on) not to be associated with a discriminatory message. It thereby argued that a moral right can be passed on from the author to another person – even a legal person, when it should be an aspect of the author’s inalienable moral rights, not of the copyright that can be traded away. Otherwise the danger that such a right is used to suppress a parody out of economic or other motives is too high.
The report recommends: The parody, caricature & pastiche exception should apply regardless of the derivative work’s purpose. It should not be constrained by a right holder’s copyright, but only by the moral rights of the author.
18. Allow Text and Data Mining
“Text & data mining” (TDM) or “content mining” refers to a variety of analytical procedures to derive additional information and knowledge from a large set of publications.
Example: A scientist may use a computer to automatically analyse a large number of research papers to discover a previously unknown association between two diseases.
Some rightsholders insist that this requires two separate licences, one for reading the works and another one for TDM.
A specific and mandatory exception to remove text and data mining for scientific purposes from the reach of European copyright and database law should be considered.
—EC TDM expert group recommendation
The report recommends: Clarify that lawful access to data includes the right to mine it through automated analytical techniques.
19. Empower research and education
The details of what is allowed under national research and education exceptions vary significantly between EU states:
Quite often the exception does not cover any use of digital formats, introducing unnecessary burdens for teachers, professors and students.
Example: Prohibited from making texts available to students in a digital format (for example through a school intranet), teachers often spend a significant amount of time making physical copies of works, which the exceptions allow for.
These restrictions also make it difficult for European universities to offer free online courses (MOOCS), an education opportunity that has gained great popularity for universities outside of Europe.
There is usually no provision for non-formal education, like self-organised study sessions by youth organizations, etc.
The report recommends: The research & education exception needs a common definition to allow collaboration across borders and should encompass non-formal education.
20. Allow e-lending
Libraries pay remuneration fees to collecting societies to lend out books they have acquired. The Rental and Landing Directive which facilitates this does not cover e-books, making libraries dependent on e-lending services offered by publishers, which (if available) are often limited and may require subscription to their entire catalogue instead of allowing the purchase of single works.
The current legal framework hinders libraries from fulfilling [their] essential services for our society in the digital era.
—EBLIDA: European libraries and the challenges of e‐publishing
The report recommends: Add an exception for lending books in digital formats.
21. No national levies on legal use
Example: Spain’s new copyright law requires the payment of a statutory licence fee for aggregating articles and other copyrighted works that are freely available online (including those released under free licenses). This new inalienable remuneration right has made the operation of news aggregation services like Google News commercially unviable and has devastating effects on the rights to freedom of expression and freedom of information, as it affects all kinds of activities that rely on the voluntary free sharing of information through open licences.
The report recommends: Whether or not a remuneration requirement is attached to an exception or limitation needs to be decided at the European level.
This does not preclude the possibility of remuneration requirements in exceptions and limitations at the EU level, as is the case with the private copying exception.
22. Transparency of private copying levies
The divergent national ways of imposing and administering private copying and reprography levies have been a source of friction with the Internal Market principles of the free movement of goods and services for quite some time
—Recommendations resulting from the [EC] mediation on private copying and repography levies [Vitorino 2013]
Member states have implemented very different private copying levies on different consumer media and devices such as blank DVDs or printers. These differences make it difficult to trade with these goods within the internal market, sometimes manufacturers have to pay levies twice for the same product. A reform should at least come to a more harmonised definition of the remuneration requirement and transparency over what happens with the money collected through levies.
The report recommends: A common legal understanding on the harm caused to rightholders by private copying, and increased transparency on the distribution of levies.
23./24. Technological protection
Many digital works are sold with technological protections that effectively prohibit people from making use of copyright exceptions provided by law.
Example: People are reguarly technologically hindered from making backup copies of their DVD purchases as private copying exceptions allow, despite having paid a levy on the blank DVD to do so.
Some technological protections install monitoring software on the user’s computer without their knowledge. This can be a security risk, as this software can be used to spy on a user’s activities on the computer. To ensure that technological protection measures don’t pose a risk, users (and experts) should be able to look at the source code of the technology and ensure that the technological protection does exactly what it purports to be doing and does not introduce security holes into a user’s computer.
The publication of the source code would also support the interoperability of different devices and data formats, which is important to avoid the development of monopolies where users have to continue buying products of the same company so as not to lose access to their library of works they have already bought.
The report recommends: Technological protection must not obstruct legal use. Any protection measures should be open source.
To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.