Since spring, the European parliament has swung the spotlight on the copyright reform project. In fact the European Parliament entrusted Julia Reda, european deputee from the Pirate Party to write a report on the Implementation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. She presented it in January and the text and its numerous amendements are currently under discussion before a vote for its adoption in July 2015. We propose hereunder a sum up of the main proposals of this report that implies various facets of copyrights and arise many reactions either positive or negative.
Standardisation of national laws
Jean-Claude Juncker, president of the european commission stated in its agenda that it was necessary « to break down national silos » in copyright and data protection legislation and to set out common rules to « make much better use of the great opportunities offered by digital technologies ». Indeed it is feared that the multiplicity of national laws hinders the development of large european services that may be able to compete with the american providers such as Netflix. It is also alleged an uncertainty of the broadcasters, service users and authors as for the rights they are granted.
In the same way during a press release Julia Reda claimed to present and defend her report that « We need a common European copyright that safeguards fundamental rights and makes it easier to offer innovative online services in the entire European Union. »
That is why the report notably suggests :
The multiplicity of copyright law in European union comes with an important difficulty when it comes to determine wetehr or not a work is in the public domain. Part of the research in copyright law regularly highlight this issue such as Christina Angelopoulos who wrote in an article that « 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 »
If it is difficult not to agree on the need of harmonization of the various terms of copyright in the European countries, it is not sure that an agreement on a common term will be possible to obtain. Indeed, the report advocates that the copyright should commonly last for a period of fifty years after the death of the author, which will represent, in some countries including France, a significant reduction of the term of copyright protection.
The report clearly states that the exceptions to copyright can benefit to the public only when they apply in every country. The idea is to establish a common legal framework for the exploitation of protected works and developement of creation.
Among the exceptions that the report wishes to develop we can point out the acknowledgement of transformative uses such as mash-ups, lipdubs, supercuts, remixes, live video transmissions of computer gaming sessions… and with the same view to admit that the exceptions such as for quotation apply to all form of expression including audiovisual work for the creation of Gif or remixes.
In her report, the European deputee highlights the importance of extending the parody right stating that « The parody, caricature & pastiche exception should apply regardless of the derivative work’s purpose » and therefore not being stricly limited to an humourous context.
Part of the authors were enthusiastic regarding theses measures and Lionel Maurel member of the Strategic Orientation Council of La Quadrature du Net even said that «The proposals of the Reda report will have a positive economic impact on creativity, and will boost research, education and access to culture. They must be supported as the first step in a positive reform of the European copyright!»
However if some see there new possibilities for creations others are worrying about the consequences of such exceptions. As example, the Civil Society of Multimedia authors claimed on its website that « Where the law weakens author’s rights by coming up with ever more exceptions, it weakens the position of authors and thus of creation itself ».
Extension of the public domain
The report strongly advises that « Works created by employees of government, public administration and the courts as part of their official duty should be in the public domain ». This measure aims to reinforce the possible access to public information.
In response to the European report « Cultural heritage : digitalisation, online accessibilty and preservation » stated that « the legal stand of some digital reproductions of public domain works laks clarity ».The report also wishes to clarify the status of the digital versions of public domain art. Indeed the report recommends that it is to be specified that «digitisation does not grant new copyright protection to works that were previously commonly owned ».
Also, the report intends to generalize the freedom of panorama across Europe, which is the right to represent public building and spaces. Here the concern is to « improve legal certainty of everyday activities ». This proposal is notably supported by photographs and medias. Thus Federico Leva, representative of Wikimedia Italy, went to meet the European deputees to enjoin them to support the reform.
However on this subject some opposition is rising, notably in France. Marie-Anne Ferry-Fall, executive director of the graphic an plastic arts authors society underlined that this proposal could allow to « exclude from copyright all the artwork permanently displayed in the public space, meaning the buildings but also the sculptures- everyone knows Miro, Calder, Buren, Arman or Cesar’s works which decorates our squares or the street art works » and that would put an end to the possibilty for the authors to obtain a fee for the commercial use of photographies of their work on postcards or ad campaigns.
Furthermore, and in a non less contested way, the report advocates for a deterritorialization of copyright within the European union.
Debate on the territorialization of copyrights
The reports states that the easiest and more efficient solution to the fragmentation of european copyrights would be the introduction of a « single european title » as they exist in trademarks.
The idea is to overcome the « geoblocking », meaning the fact that some programs are not available outside the country where they are broadcasted or some subscription can not be used from a different country. If this idea has some supporters there is also a strong resistance to removing geo-blocking, particularly in France.
Lucas Belvaux as cineast explained that « the idea of ending the territorriality of copyright is extremely serious. It will mean that we have to sell our european rights to a single entity ». Indeed the territoriality of rights comes with an economic logic in the audiovisual programs’ sales. The production companies or right holders can sell rights to different broadcasters on a national basis. This allows the producers to increase their receipts related to the films but above all to find financing for these films. For a producer to deal with a single representative arises huge financial issues and as a consequence can weaken the diversity of film production.
The French commission for culture, education and communication, after a meeting with Julia Reda reminded that it is « necessary to act carefully in the scope of copyrights, in order to avoid undermining the remuneration of creators which could lead to a crisis of funding of the cultural industries and dangerously limit the cultural diversity ». The commission suggests that the European commission focus on the e-commerce directive in order to impose responsibilities on providers who are the main benefactors of digital exploitation of cultural products.
It is to be noted that the opponents to this measures have been heard : the European commission renounced to a complete deterritorialisation of copyrights in Europe. It has been chosen to focus on « the portability of legally acquired services » that will allow the subscribers to a channel or service to access to their offer while they are abroad.
This victory remains questionable because the exercice of such a portability right may harm copyrights and there are likely to be further reserved reactions.
Finally we can lean on less controversial proposals, mainly relating to the opening of the digital market of cultural products and to the incompatibility between certain mechanisms of copyright and the habits of the digital market.
Necessity to adapt copyright to the technological evolution
Technological evolution has sometimes overstepped the frame of copyright, raising incompatibilities between the reality of the cultural market and the legal dispositions. The report aims to modernise copyright in order to ease the exploitation and the transmission of the work on the digital media.
At first, the report wishes that the exceptions in favor of education cover digital media. Indeed actually these exceptions often only consider physical copies and imply an unecessary burden for teachers and students who must print or copy the documents.
In the same spirit the reports suggests to set up a frame for lending books in digital formats. It is to be said that actually libraries are dependent of the e-lending service of editors which can be limited. It is not surprinsing that the European Bureau of Library, information and documenation associations, strongly supports the report on this measure but nonetheless insists on the necessity to find a fair compensation for the authors due to the e-lending of their works.
Furthermore the report wants, with no surprise or real protest, to authorize two habits arising directly from the technological evolution : the use of hyperlinks and the Text and data mining (TDM). The reports wishes to ease the access to online contents and « Clarify that referencing to works by means of a hyperlink is not subject to exclusive rights ». There are some oppositions on this points and French authorities reminded that the Court of Justice of the European Union estimates in the Svensson case that providing hyperlink was an act of communication and shall be subject to copyright.
TDM are comparison and extraction methods principally used in research. The report follows the advice of the TDM expert group recommendation that previously stated that « 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 ».
Finally with a view to the different proposals of the report directed by Julia Reda we can observe than most of them come as an answer to the new need of the cultural sector regardding technolgical evolution and aim to clarify copyright at an european level. This seems to be a logical evolution of copyright and perfectly corresponds to the european agenda for a legislative harmonisation within the European community. Nethertheless it is important to highlight that some points of the report, such as the one related to the territariolisation of copyrights, can weaken the diversity of the cultural sector and the remenuration of rightholders. The portability of contents remains risky and could weaken the cultural sector.
Therefore the European deputee will have to strike the right balance between the necessary evolution of copyright and the protection of cultural diversity in the European Union.