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 document.

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 Jobs."

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 uncertainty.

Following the adoption of the IPR Strategy in May 2011, the Commission has taken various steps to respond to the challenges of copyright in the digital economy, including the adoption of the Orphan Works Directive, the Memorandum of Understanding on Out-of-Commerce Books, and a proposal for a directive on collective rights management.

But 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 shifting).

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?