After a general overview of the changes in digital regulation prepared by the European Commission, let’s see what innovations are proposed in relation to copyright and related rights. They are predominantly set out in the package of documents published by the European Commission on September 14, 2016. Many hopes and concerns were associated with it. Experts and ordinary users anxiously read the texts leaked to the Internet ahead of time, wondering whether they signify a real reform or create an appearance of it, whether the European legislator is looking for a real balance of interests of the participants or is again strengthening the position of copyright holders.
A preliminary action plan was outlined in the Communication of the European Commission dated December 09, 2015 “Towards a modern, more European copyright framework”. It consists of 4 main steps.
1) Ensuring wide access to content throughout the EU.
Europe has the largest percentage of Internet users among the population (77%) in comparison with other countries. Last but not least, they go online for content. Free movement of content is beneficial to both consumers and businesses, but is not yet achievable. Consumers are unable to purchase content for a variety of reasons: online services do not provide services to consumers in other EU member states, or many European works are not in their catalogs (only 19% of audiofilms produced in other EU member states are available online; 53% of users tried to find materials on foreign services that are not distributed in their country), or subscribers cannot use legitimately purchased content when traveling abroad. Consumers do not understand how this is possible in the world of the Internet. As a result, they use workarounds (like VPNs) to gain access, and piracy becomes justified (22% of Europeans consider it acceptable to download pirated content when legal content is not available). This situation is caused by the territorial effect of intellectual property rights, or a deliberate decision of rightholders, businesses or providers.
The European Commission proposes to gradually remove the obstacles preventing cross-border access to content and the dissemination of works. Steps outlined:
Ensuring the mobility of content so that users who have subscribed to or purchased content can retain access to it when traveling temporarily to other MSs;
promoting online cross-border distribution of TV and radio programs;
stimulating the issuance of cross-border licenses for the use of content, through the development of mediation programs, etc .;
simplification of the digitization of retired works and provision of access to them throughout the EU;
measures to promote European works on a single market, including film catalogs, the creation of licensing hubs, the widespread use of standardized work identifiers to make it easier for potential consumers and investors to find the necessary materials;
development of a European aggregator of online search services (for indexing available legitimate content offers) and national search tools; improved funding for subtitling and dubbing from public funds;
discussion with the audiovisual industry on ways to improve funding for European works.
2) Adaptation of exemptions from IP law to digital and cross-border space.
Fragmentation of copyright in the EU is well illustrated by exemptions and restrictions. Exceptions in EU law are mostly optional and not detailed. National legislators decide for themselves whether to implement them and to what extent. There are only two imperative norms: in Art. 5 (1) of the Information Society Directive and in Art. 6 Orphanage Directives. Therefore, not all MSs have exemptions or the conditions for their use differ. Sometimes withdrawal in nat. law is defined more narrowly than the EU law allows. The EU Court of Justice is trying to deal with emerging inconsistencies. He explained that the discretion of the Member States is not free when they implement the exemption within the limits established by EU law. MSs are not entitled to determine the limits of exemptions in an inappropriate or non-harmonized way that differs from other MSs (C-467/08 Padawan). The EUJU also clarified that since exemptions must be construed strictly, MSs must maintain their validity in order for the purpose of the exemption to be realized (Painer C-145/10). Finally, the exemptions themselves need to be reviewed periodically due to changes in technology. Therefore, the main goal is to increase the level of harmonization, to make provisions on exemptions mandatory and to ensure their operation throughout the EU.