European Union: The Future For Copyright In Europe

Last Updated: 19 January 2015
Article by Tim Johnson

Over the last few years the European Commission has undertaken analysis and carried out several consultations on the current copyright rules and the regulation of the audiovisual sector. Alongside this we have seen strong rhetoric from European Commissioners responsible for these areas campaigning for change.

The developments from the European Commission have included: the 2011 Communication 'A Single Market for Intellectual Property Rights'; the 2013 Green Paper 'Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values' (with responses published in September 2014); the 2012 public consultation 'On content in the Digital Single Market' (with responses published in July 2014); and the Licences for Europe stakeholder dialogue which resulted in the Joint Statement on Cross-border Portability of lawfully-acquired Audiovisual Content in November 2013.

The responses to these papers make interesting, although not unsurprising reading, largely showing that consumers generally desire access to all content freely across the whole of the EU, whereas the audiovisual industry do not see any need for any legislative intervention and argue that the use of current practices such as territorial licencing are necessary. The industry responses emphasise that there is a lack of incentive and little demand for cross-border services due to viewing habits of consumers, language, and maintaining cultural and linguistic diversity between member states. They also state the importance of licencing by region to ensure the best placed distributors are involved to target the relevant market and enable producers to effectively obtain the financing required to create new content.

Since we are yet to see the details for any proposed copyright reform, a good place to gain clues is the published speeches and blogs from the key individuals who will be behind any changes.

Neelie Kroes, during her time as Vice-President of the European Commission responsible for the Digital Agenda, was a key spokesperson for a reform of the copyright rules to account for the digital marketplace and "mitigate the effects of territoriality". Ms Kroes' frequent blog posts and speeches on the subject illustrate that she considered copyright "an obstruction" rather than "an enabler". Ms Kroes focussed on the feedback she received from consumers wanting access to content. In a speech in July 2014 she stated that "citizens across the EU break the law just to do something commonplace. And who can blame them when those laws are so ill-adapted... copyright risks becoming an irrelevance". She went on to state that "the EU copyright framework is fragmented, inflexible, and often irrelevant. It should be a stimulant to openness, innovation and creativity, not a tool for obstruction, limitation and control". Although Ms Kroes recognises that "creation takes effort; and that investment needs its reward", her argument centres on the principle that "we need to ensure open access to content" and circumvent the "barriers" created by territorial restrictions.

Ms Kroes left her role in the European Commission at the end of October 2014, as Jean-Claude Juncker's Commission took the reins. In his Opening Statement, President Juncker set out his policy areas to be tackled, the second of which was "A Connected Digital Single Market". He stated:

"We need to break down national silos in telecoms regulation, in copyright and data protection legislation, in the management of radio waves and in the application of competition law. We can ensure that consumers can access services, music, movies and sports events on their electronic devices wherever they are in Europe and regardless of borders... To achieve this I intend to take, within the first six months of my mandate, ambitious legislative steps towards a connected digital single market... by modernising copyright rules in the light of the digital revolution and changed consumer behaviour and by modernising and simplifying consumer rules for online and digital purchases."

In the President's Mission Letter to both the incoming Vice-President for the Digital Single Market, Andrus Ansip, and Commissioner for Digital Economy and Society, Gunther Oettinger, he reiterated the points made (as set out above) from his Opening Statement. This message was picked up by Ansip in his Introductory Statement in October 2014 where he said that:

"Geo-blocking goes against the core principles of Europe's single market... I will work to abolish it. But this is only one of the reasons why e-commerce in Europe, particularly cross-border, is relatively low. Similar issues concern copyright. If approved, one of my priorities will be to make sure consumers have access to content across borders."

In one of his first blog posts in his new role, Ansip stated that it is an "unacceptable anachronism in the modern age" for someone in Valencia to not have access to the same online content and services as someone in Helsinki and reiterated that he is "against any form of geo-blocking".

After the first meeting of all the Digital Single Market Commissioners on 12 November 2014, Ansip stated that one area of work for the team "relates to removing restrictions (and preventing new ones) and particularly to stop blocking of online consumers based on their location or residence.  This will be about reforming copyright rules and getting rid of unjustified curbs on transfer and access to digital assets".

On 16 December 2014, the European Commission set out its work agenda for 2015 showing the steps they will take in the next year, including the actions for the Digital Single Market.  This is one of their top priorities and will include "modernising copyright rules" and "simplifying rules for consumers making online and digital purchases". Ansip expanded on this and declared that the European Commission want to "make [EU copyright rules] fit and relevant for the Digital Single Market so that everyone – citizens and businesses – has online access to digital services, including between and across the EU's own borders".

Although the details of any reforms have not officially been released, there are various options which have been discussed in the consultations such as industry led initiatives, expanding the definition of "making available" or a unitary EU copyright title.

We will be seeking opinions on these options from attendees at our Media Crammer in February to gain an understanding of the industry's views.

Going into 2015 this will definitely be an area to watch very closely.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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