In 1709 the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com
Tuesday, 4 December 2012
EU to revise InfoSoc Directive with a FLET approach
Gangnam Style upgraded
Tomorrow the EU Commission
will hold an orientation debate on content in the Digital Economy. This will
address the points raised in a document released last week (which you can
find on the website of IP Watch), in particular "whether the copyright framework remains fit
for purpose in the digital context." [This refrain seems to have become more popular than Gangnam Style, at least in copyright circles]
Consumers and businesses are
said to agree that copyright rules have to be made more flexible and their
views were a major factor in the rejection of ACTA. The growth of Pirate
Parties in some Member States is another indicator of this trend, explains the
Therefore the time is apt for
the Commission "to agree on orientations on copyright in the digital
economy for the second half of its mandate, taking into account the
opportunities and challenges for the full value chain of the internet economy.
The European Council has also recognised the need to modernise the copyright
system in the Compact for Growth and
What the Commission is going
to discuss includes the following:
I) The balance of rights and obligations, in particular: the nature and role of the
different players in the internet value chain for the production,
distribution and consumption of creative content. Particular attention shall be
dedicated to user-generated content, aggregators, users'
activities online, direct licensing, enforcement.
He's certainly fit and is also ready to fix copyright
II) The EU copyright framework, as resulting from the InfoSoc Directive. To preserve a fair
balance of rights and interests between right-holders and consumers, the
directive included a number of possible exceptions and limitations, while leaving
significant flexibility to Member States for their transposition. This
situation is said to cause fragmentation of the Single Market and legal
these initiatives have not addressed all
the challenges identified above. Therefore, there is a need to review and
modernise the copyright framework set out in the InfoSoc directive. In
particular, the elements calling for specific consideration are four:
Fragmentation - Limitations&Exceptions, Enforcement, Territoriality (FLET,
for those who love acronyms or just want to learn things faster).
1. How best to reduce the
fragmentation of the EU copyright market. Currently distinct
copyrights exist for the 27 national territories and must in principle be
subject to appropriate licensing for distribution in
each Member State. Options floated in the 2011 IPR Strategy include
the creation of a European Copyright Code, the setting up of an optional
unitary copyright title which would exist in parallel with the national
regimes, and the obligation of multi-territorial licensing.
2. The extent to which the current level of harmonisation as
well as the scope of the limitations and exceptions to
copyright are appropriate for the digital age, given that they were implemented to
varying degrees in the Member States.
3. How to improve enforcement.
Any change in the copyright directive will have to be mirrored in parallel
revisions of the Enforcement Directive (the IPRED directive). The impact of a possible copyright reform on
fundamental rights [have you noticed all those references to fundamental rights in recent CJEU copyright cases?], as well as the consequences on the EU's international
obligations in the field and on the EU's position towards third countries would
also have to be assessed.
4. How to mitigate the effects
of territoriality in the Internal Market by looking at all
options, including introducing a "country of origin" approach or an
approach based on the "targeting" of certain publics. [remember what the Court of Justice said in Sportradar(noted here and here)?] This needs to take into account the fact that some restrictions on
the provision of services are commercially based and not related to
copyright [perhaps the decision in Murphy(noted here)went too far?]
What recipe for EU copyright?
Work to prepare a full revision of the legal
framework should be completed by early 2014 so that the Commission is in a
position to decide whether to table legislative proposals during this mandate.
III) Specific issues, including cross-border
portability, user-generated content, text and data mining, private copying levies, the audiovisual sector,
and some activities of cultural heritage (in particular format
The questions which
the members of the Commission are called to answer are the following:
1) Do you share this analysis of the developments
of the internet economy and its implications for the copyright directive?
2) In particular, do you agree with the terms of
the revision of the [InfoSoc] directive outlined in the present note?
3) Do you agree that in parallel rapid progress
should be made on the ... issues identified here? Are there other
areas which should be prioritised in the short term?