Copyright reforms proposed by the European Commission in September as part of its digital single market initiative signalled the Commission’s resolve to press on with its gradual harmonisation of copyright rules across Europe.
The proposals have been criticised for not going far enough in freeing up online content. However, a number of them are likely to have a significant impact in practice. They introduce, among other things, new copyright exceptions, a new right for the press to control the use of online news content, rights to fair remuneration for authors and performers and new obligations on video-sharing and similar platforms. It is currently unclear whether these proposals will be implemented before Brexit and whether the UK Government will adopt them post Brexit. The UK Intellectual Property Office is calling for views on these issues. The UK IPO’s consultation can be accessed here.
Key proposals include:
New mandatory exceptions
The proposals would oblige all Member States to introduce exceptions into their copyright laws on the following topics.
Text and data mining (TDM) – An exception for text and data mining will allow researchers to use this increasingly important research technique on copyright material to which they already have lawful access for the purposes of scientific research. This means that it will not be necessary for European organisations to obtain additional copyright licences covering TDM specifically. There is evidence that uncertainty about this issue has contributed to European researchers falling behind in the use of TDM, particularly compared to the US where the ‘fair use’ defence appears to allow it. The Commission’s proposed exception has, however, been much criticised in some quarters as it is limited, broadly, to research carried out in a non-commercial context.
Teaching – The teaching exception allows digital use of copyright works for the sole purpose of illustration for teaching. The use must take place on educational premises or through a secure electronic network accessible only by the educational establishment’s pupils or students and teaching staff. A major caveat here is, however, that Member States may disapply this exception if licences covering such use are easily available in the market.
Preserving the cultural heritage – Member States must allow cultural heritage institutions – such as public libraries and museums – to make copies of works permanently in their collections in any format or medium where this is necessary to preserve them.
Although UK copyright law already contains some exceptions in these areas the new proposals would require these to be amended to conform with the European legislation.
A new copyright-related right for the press
The Commission comments that while newspapers, magazines and other press publications have benefited from the shift to digital services in that it has led to broader audiences, it has also impacted advertising revenue and has made the licensing and enforcement of rights in such publications more difficult. This new 20-year right is intended to give the press more control over the use of their publications by search engines and news aggregators and to strengthen their bargaining position when negotiating the use of content online. The News Media Association has broadly welcomed the new right. However, some commentators have questioned what the effect will be in practice – for example, they point out that copyright laws previously introduced in some countries, such as Germany, prohibiting search engines and news aggregators from using snippets from news stories without consent led to search engines and aggregators delisting the publications which were demanding royalties. This in turn led to a reduction in traffic and revenues, so that eventually the publications agreed to the content being used without charge.
New obligations for video-sharing and similar platforms
The proposals also aim to strengthen the position of copyright holders in relation to the online exploitation of their content on video-sharing – or similar – platforms, such as YouTube or Dailymotion, which store and give access to large amounts of material uploaded by their users. Such platforms would be obliged to cooperate with rights holders in relation to whether their works are to be made available and to employ appropriate and proportionate measures to achieve this, such as content recognition technology. Many platforms already use such technology so that additional measures may not be required in all cases.
Fair remuneration for authors and performers
The proposals would also give authors and performers the right to request additional remuneration if the remuneration initially agreed under publishing, recording and other contracts is disproportionately low compared to subsequent revenues. This would mean that the original contract might be re-opened if, for example, a musician is originally engaged on a long term contract at a low royalty but later becomes very successful. Such a provision is very unusual in English law, where contractual rights usually prevail, but similar provisions already exist in some civil law countries that provide specific protection for the artist’s economic interests.
If you have any questions on these or any other copyright issues, do please contact Tom Lingard, Partner and Head of Intellectual Property or Charlotte Tillett, Partner and Head of Life Sciences, who will be happy to discuss.