Since the turn of the century, we’ve seen many changes in the ways people access, use and share creative works. Should the rules that protect creators change, too, and be adapted to the new digital realities? According to the European Union, yes, they should.
Indeed, the EU’s principal institutions are working intensively to update the provisions of a 2001 European Directive on “copyright in the information society” that is already perceived – after only 16 years – as outdated.
The main goal of the proposed new directive is to foster a well-functioning marketplace for copyright-based products and services among the 28 countries of the Union (27 when the UK is expected to leave in 2019 because of Brexit).
Content creators, producers and users — and not only European ones — will be directly affected by the outcome of this process. A great deal is at stake for authors and publishers everywhere of text works such as books, newspapers, magazines and journals.
Let’s review some of the proposed changes and their potential impact on the creative industries.
In September 2016, the European Commission presented a legislative package for the “modernization” of copyright rules in the European Union, including a draft for a new directive on copyright in the “digital single market.” (A European Directive contains a set of guidelines on a specific policy field for Member States to adopt accordingly in their national legislations.) The main goal of the proposed new directive is to foster a well-functioning marketplace for copyright-based products and services among the 28 countries of the Union (27 when the UK is expected to leave in 2019 because of Brexit).
Among the main proposed measures are three new “exceptions” to the exclusive rights of copyright holders – that is, three new cases in which users would be legally allowed to make certain uses of protected works without needing to obtain prior permission from the rightsholders.
One of those new exceptions aims to facilitate “illustration for teaching,” and would govern the use of copyrighted content in digitally-enabled and online teaching activities, including across borders. In the view of many creators of educational materials, the proposal may trigger an end to the well-functioning collective licensing systems for educational uses of creative works which are in place in most European countries – licensing systems that constitute an important source of royalties for European and non-European authors and publishers.
As Sandra Chastanet, from the French Reproduction Rights Organization CFC, recently stated in a conversation with CCC’s Chris Kenneally for CCC’s podcast program Beyond the Book, if content can be accessed “without permission, without even paying any revenue, the impact on the publishing industry will be tremendous.” To support her view, Chastenet referred to the difficult situation faced by publishers in Canada in the wake of the amendments to copyright law passed in that country in 2012.
Another new exception would make text and data mining (TDM) activities for scientific research purposes possible without requiring an authorization from the rightsholders. Intense discussions are taking place to delineate the scope of this exception. The threat here for scientific, technical and medical publishers is that private companies may count among the beneficiaries of this exception, possibly affecting the existing licensing market and revenue opportunities for the same TDM activities.
On a different note, the draft directive foresees the creation of a new right for publishers of press publications. This “neighboring right” would empower news organizations in their negotiations with online services such as search engines and aggregators. According to Angela Mills Wade, Executive Director of the European Publishers Council (EPC), speaking in a recent interview for Beyond the Book, this new right is meant to provide “a legal wrapper around what is made available [online] by the publisher.”
EPC’s Mills Wade explained how “broadcasters and music and film producers already benefit from a neighboring right at the European level, so this is to bring press publishers in line with other producers of content.”
With the proposed directive, a news organization could, for example, require a web aggregator to obtain a license before re-publishing content in an online news digest. “It’s been all too easy for aggregators or other companies to help themselves to publishers’ content and reuse it without permission,” said Mills Wade.
There are quite a few more provisions in the proposed directive that further present new opportunities and challenges for content creators and producers. Many different interests are at stake, including those of consumers, who demand better, easier access to content. EU institutions have already received hundreds of submissions defending many different positions on the topic. Finding the right balance among all those interests will be a challenging and time-consuming task.
The discussions over the draft directive are ongoing now at the European Parliament. The European Council is expected to take up the matter in a few months. Ultimately, the three European institutions involved – Commission, Parliament and Council – must agree on a final text. Very likely, the new directive will not be approved before the end of 2017, with each of the Member States then responsible to implement it into their domestic legislations.
Altogether, “modernization” of copyright in the EU is a process to watch closely. Its outcome will critically shape the copyright-based markets and the consumption of creative works in Europe over many years ahead.