15 September 2016Copyright

Four major takeaways from the new EU copyright rules

After the European Commission announced its modernised copyright rules yesterday, WIPR spoke to several intellectual property lawyers about the major takeaways from the new regime.

In a statement, the commission set out proposals to increase cultural diversity in Europe and content available online.

As a key part of the commission’s ‘Digital Single Market Strategy’, it has also adopted proposals on “improved copyright rules on education, research, cultural heritage and inclusion of disabled people, and a fairer and sustainable marketplace for creators, the creative industries and the press”.

In one area of the strategy, the commission proposed a legal mechanism for broadcasters to more easily obtain authorisation they need from rights owners to transmit programmes online in other EU member states.

It added that the rules aim to reinforce the position of rights owners to negotiate and be remunerated for the online exploitation of their content on video-sharing platforms such as YouTube.

Lawyers have offered mixed reactions to the probable impact of the changes.

General impact

Ted Shapiro, partner at Wiggin, said: “The four proposals, including two directives and two regulations, will have a profound impact on a wide range of sectors: copyright owners, technology providers, online platforms, consumers, researchers, libraries, handicapped persons and indeed society as a whole.”

He added that certain technology sectors and user groups have already voiced their disappointment with and opposition to a number of elements of the package, including publishers’ related rights and new obligations for certain online platforms.

The commission proposes to introduce a new related right for publishers, similar to the right that already exists under EU law for film producers, record (phonogram) producers and other players in the creative industries like broadcasters.

“The European audiovisual sector remains concerned about the proposals which would limit territorial exclusivity. Publishers are concerned about the text and data mining exception. Certain users believe there are not enough exceptions and the ones that are proposed are too narrow.”

The proposed rules would make it easier for researchers across the EU to use text and data mining technologies to analyse large sets of data.

Shapiro added: “Authors and performers want a stronger intervention to ensure more adequate remuneration. These views will all play out in the Council and Parliament's deliberations. It may take several years; some pieces may advance faster than others. Copyright in the EU will never be the same.”

Simon Bennett, partner at Fox Williams, said the proposals represent a welcome development as the increasing use of the internet and digital media for the dissemination of copyright works does not respect national boundaries.

“Having to navigate 28 national copyright laws which are only partially harmonised can make it very difficult for content providers to operate, which acts as a restriction on economic development for rights holders and freedom of choice for the user.”

Online infringement

Nick McDonald, partner at Potter Clarkson, said that the proposals “merely represent the next step in the long war against online infringement”.

He added that it is a hugely difficult issue to address, setting copyright owners against what are seen by many as important and automatic access rights to online content.

“Whilst this is undoubtedly a step in the right direction, most notably the attempt to harmonise the EU with other significant economic blocks, there is still a long way to go before we see an end to widespread copyright infringement through the internet.”

Robert Lundie Smith, partner at IP law firm EIP, said that requiring websites to actively police the content they host will invariably lead to an increase in the mistaken blocking of legitimate content, and increased distress and frustration to ordinary people and small businesses.

“The fact that Google receives millions of takedown notices in one day illustrates that arguing a single case to reinstate content will be an uphill battle.”

Lundie Smith added that criticisms have already been made over the substantial costs of developing sophisticated software to comply with the proposed legislation and the difficulties this will pose for smaller players.

“The availability of cheap commercial alternatives has been raised in response. While perhaps solving the problem for smaller websites, this is a point to send shivers down the spines of rights holders as cheaper less sophisticated software will have a less sophisticated means of differentiating between an infringement and a legitimate post.”

Further, he said that there would be a burden placed on websites and this may be “no less than policing the current takedown regime”.

“The big losers will be the people who have their personal content blocked time and time again when the net is invariably cast too wide as websites look to avoid liability for leaving infringing content in place,” he added.

David Taylor, partner at Hogan Lovells, commented that the proposed modernisation of copyright in the EU is going to come in for some serious debate.

“While it could be ground-changing for many user-generated content platforms, it is likely to be less so for YouTube, for instance, which is often cited as not paying artists sufficiently for their music/videos.

“We can all agree that artists should be paid for their work, but how do you define ‘sufficient’ in the modern digital era, which itself enables far easier and greater distribution and thus greater potential revenue? YouTube does have commercial agreements in place with rights owners, generating several billion dollars in licensing fees to the music industry to date,” he said.

Taylor added: “Whether this directive would actually change how YouTube operates is debatable though. It certainly won’t affect the existing state-of-the-art content ID system which YouTube employs enabling ‘take down and stay down’, which works well.”

He continued by saying, “it is claimed that this directive is a ‘significant and historic step’, but to what? Hopefully it will not become a significant step towards the balkanisation of the internet as we know it with a future for consumers filled with geo-blocking of content”.


Bennett said that “it is regrettable that the UK consumer may not be a beneficiary of these new rules if they take effect after Brexit."

Adam Rendle, senior associate, and Mark Owen, partner in the IP and media team at law firm Taylor Wessing, said: “As to the impact of these proposals on the UK post-Brexit, it will all come down to how the timing of these measures interacts with the article 50 [of the Lisbon Treaty] process and to what extent the terms of exit require the UK to adopt EU legislation as a condition of trading with the remainder of the EU.

“There are considerable areas of uncertainty in these proposals which will continue to affect UK-based tech and media companies regardless of the terms of Brexit, so it will remain very much in their interests to follow their progress closely and to input into the legislative process as much as possible,” they added.

Industry associations’ response

The Publishers Association, which represents book, journal and audio electronic publishers in the UK, commented on the new rules through CEO Stephen Lotinga.

“This is a sensible set of proposals which recognises the role of both publisher and author within the copyright framework.

“In a number of areas such as education and text and data mining the commission has listened to the concerns of businesses and the UK government on the need to balance any further copyright exceptions for public policy reasons with a recognition of the legitimate interests of rights holders, with the UK framework being regarded as best practice.”

He added: “These proposals are of course the beginning of a process and we will want to see much greater clarity about the exact intention behind certain definitions and a stronger evidence base as to why certain changes are needed at all.”

Lotinga said that “it is also disappointing that the commission choose not to extend the publishers’ related right to all types of publishers without any real explanation”.

The International Confederation of Societies of Authors and Composers (CISAC) said that the package is a “good starting point” in addressing the unfair situation for creators in the digital market.

Gadi Oron, CISAC director general, said: “Europe is waking up to the global community of creators calling for urgent action to secure a fairer digital market. The proposal is a step in the right direction but additional steps are required to ensure creators receive fair remuneration and to prevent abuse of the existing legal framework by online intermediaries.

“We are looking at the European Parliament and the member states for more significant action towards a better future for creators in the digital marketplace,” he added.

What next?

Birgit Clark, professional support lawyer at Baker & McKenzie, said the proposals amount to a sizeable project which affects the interests of many and “it is thus not surprising that the commission’s plans will not please everyone”.

Taylor added that the battle lines may be drawn, “but we still have a long way to go, through the European Parliament, out to the member states for transposition, continued conflicts and then ultimately up to the Court of Justice of the European Union to try to answer the questions this directive raises”.

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