State of the Union 2016: Questions and answers on the modernisation of EU copyright rules for the digital age

Met dank overgenomen van Europese Commissie (EC) i, gepubliceerd op woensdag 14 september 2016.


What is copyright and how is it regulated at EU i level?

Copyright is a framework of rules which set out how works, such as books, films and songs, are legally protected and can be used commercially and non-commercially. It consists of international, EU and Member States' rules. The current EU copyright law comprises of more than 10 Directives. EU rules, in particular the "Information Society/Copyright Directive" (2001/29/EC), have harmonised several exclusive rights and exceptions to copyright. Other important Directives in this context include the Software Directive 2009/24/EC and the Database Directive 96/9/EC.

Why is there a need to modernise EU rules?

Digital technologies have transformed the ways creative content is produced, distributed and accessed. Today 49% of EU internet users access music or audiovisual content online, 40% of those aged 15-24-year-old watched TV online at least once a week. In 2015, digital became the primary revenue stream for recorded music (source: IFPI Global Music Report 2016). However, essential parts of the EU copyright framework date back to 2001 and are not always adapted to the digital landscape. For example, while copyright exceptions exist in the areas of education, research and preservation, digital uses were not anticipated by these provisions, therefore limiting the possibilities for users (e.g. educational establishments, research institutions, libraries) to benefit from the potential of new technologies, in particular across borders.

Also, the existing EU rules facilitating the clearance of rights (i.e. obtaining right holders’ authorisations) for radio and TV programmes provided by satellite transmissions and cable retransmissions do not extend to digital and online transmissions or retransmissions. It is therefore particularly difficult for broadcasters to make their content available on the internet for users based in other EU Member States. Finally, the current EU copyright framework does not address the problems emerged in the recent years in relation to the distribution of value in the online environment.

The Commission’s Digital Single Market strategy presented in May 2015 identified the need to reduce differences between national copyright regimes, to ensure a better functioning of the applicable rules across borders and to allow for wider online access to content across the EU. As a first step, in December 2015, the Commission proposed a Regulation on cross-border portability of online content services to allow EU residents to travel with the digital content they have purchased or subscribed to at home (see press release). The draft Regulation is currently being discussed by the European Parliament and Council. At the same time, the Commission presented an action plan for the modernisation of EU copyright rules, including targeted actions and a long-term vision - and it is delivering on it today.

What are the objectives of the proposed initiatives?

Today's copyright reform delivers on the Commission's December 2015 action plan for the modernisation of EU copyrights rules, with the aim to bring EU rules in line with technological developments and with the rapidly-changing behaviour of viewers online. Today's copyright package includes two Regulations and two Directives which will modernise current EU copyright rules. Overall, it will widen access to content across the EU and create a fairer deal for all online players.

The proposed Regulation which governs copyright and related rights for online transmissions and retransmissions of television and radio programmes will:

  • Foster the cross-border distribution of television and radio programmes online by facilitating rights clearance
  • Facilitate the licensing of European audiovisual works and the digitisation and making available of-out-of-commerce works;
  • Adapt key exceptions to the digital and cross-border environments, focusing on digital and online uses for educational purposes, text and data mining to boost research and innovation as well as preservation of works in their collections by cultural heritage institutions such as museums and cinematheques;
  • Achieve a well-functioning marketplace for copyright, focusing on issues related to the sharing of value in the online market place.

In addition the Commission proposes:

II- Ensuring wider access to content, including ACrOSS BORDERS

What is the current situation for online transmission and retransmission of television and radio programmes?

Broadcasters are increasingly offering their broadcasts online. However, their online programming often remains unavailable in other Member States than their Member State of origin even if there could be a potential high interest (for instance because of the language)For example, a single episode of a TV programme may incorporate many different audiovisual, musical, literary or graphic works which are protected by copyright and/or related rights under EU law. A broadcaster will need to clear rights from a multitude of right holders and for different categories of works and other protected content, often in a very short time, especially in case of news or current affairs programming. Broadcasters need to have the rights for the relevant territories if they want to make their broadcasts available online in the countries where they are already broadcasting their linear TV programmes in other countries.

Also, retransmission services, which aggregate TV and radio channels into packages, are increasingly provided under technologies other than cable (for example IPTV), but the current rules facilitating rights' clearance for operators are limited to cable retransmissions and the operators of services using increasingly used and equivalent technologies (for example, IPTV providers) cannot benefit from them.

The current complexity in the clearing of rights (i.e. obtaining right holders’ authorisations) makes it difficult for these services to develop across borders and to offer programmes coming from other EU countries.

What is the Commission proposing to develop cross-border access to TV and radio programmes?

The Commission proposed a draft Regulation which will give the possibility to broadcasters and operators of retransmission services such as IPTV providers to offer wider access to TV and radio programmes across borders. This will promote consumers' access to more TV and radio programmes originating in other EU Member States and will foster cultural diversity.

The proposed Regulation addresses the difficulties related to the clearance of copyright in two ways:

  • By establishing that the rights required for the online services of broadcasters that are directly related to their broadcasts (for instance the online simulcasting of their satellite broadcast) are to be cleared for the broadcaster’s country of principal establishment (the principle of the “country of origin”). This will help broadcasters to make the vast majority of their content (news, cultural, political, documentary or entertainment programmes for instance) available online also in other Member States. As a result, consumers should have more choice to watch and listen to online programmes transmitted by broadcasters established elsewhere in the EU. Citizens of linguistic minorities or Europeans living in another Member State should have better possibilities to follow programmes in their mother tongue.
  • It will also extend the system of compulsory collective management currently applicable to cable retransmission to other equivalent digital retransmissions. This proposal will therefore make it easier for retransmission operators to clear the rights in programmes from other Member States in order to offer to their users more channels from across the Union. For example, Belgian Proximus TV which offers TV packages to Belgian customers using IPTV technology will be able to clear more easily rights for channels from other Member States and include them in its package.

This proposal complements the existing Satellite and Cable Directive which already facilitates cross-border satellite broadcasting and retransmission by cable of TV and radio programmes from other Member States. Thanks to the Satellite and Cable Directive, a large number of TV channels are available in other Member States than the Member State of origin. This has benefited to strengthen Europe's cultural diversity and to Europeans living in another Member State.

Which services are covered by the country of origin principle? What are the ancillary services? Why are video-on-demand services not covered?

The proposed Regulation covers online services that may consist in the simultaneous online transmission of the broadcast, the possibility to catch up the broadcast programme afterwards for a period of time and the online provisions that complement the broadcast (previews, complements such as “the making of”). As the country of origin applies to services strictly related to broadcasts, it does not apply to VOD services which have different characteristics (and are not ancillary to broadcasts).

What is the current situation for audiovisual works available on video-on-demand platforms? How the new rules will work?

Despite the growing popularity of on-demand services (like Netflix, Amazon Video Universcine, Filmin, Maxdome, ChiliTV) relatively few EU audiovisual works are available on video-on-demand (VoD) platforms. Less than half (47%) of EU films released in cinemas between 2005 and 2014 are available on at least one VoD service. Also, EU audiovisual works are often not available on platforms outside their home country; around half of EU films are available in only one country and 80% of EU films are available in three European countries or less on VoD services. This is partly explained by difficulties, including contractual ones, in acquiring the rights.

The Commission wants to facilitate negotiations to increase the availability of EU works on VoD platforms. It proposes to introduce a negotiation mechanism in each Member State that would make it easier to conclude licences for the online exploitation of audiovisual works. This will be possible thanks to the help of an impartial and professional body that will assist parties in negotiating and achieving agreements. A dialogue, led by the Commission, with the audiovisual industry on licensing issues and the use of innovative tools like licensing hubs will complement this mechanism. This comes in addition to the recent proposal for an update of the Audiovisual Media Services Directive which asks on-demand providers to ensure at least 20% share of European content in their catalogues (press release).

When is a work considered out-of-commerce? What is the issue?

Out-of-commerce works are works that are still protected by copyright but are no longer available to the public through usual commercial channels (e.g. books that publishers have stopped printing and selling). These works can still hold great cultural, scientific, educational, historical and entertainment value.

The collections of cultural heritage institutions - such as libraries, museums, archives and film or audio heritage institutions - contain an abundance of out-of-commerce works. These institutions are often willing to digitise them in large numbers and make them available to the public. However, the inherently low commercial value and relatively high cost associated with the individual licensing of these works can make mass digitisation projects unfeasible. Cultural heritage institutions estimate that transaction costs could be as high as EUR 100 for a book, EUR 50 for a poster, EUR 1.70 for a single photograph and EUR 27 for a short non-professional film.

What does the Commission propose?

The Commission proposes a legal mechanism to facilitate collective licensing agreements for all types of out-of-commerce works held in the permanent collections of cultural heritage institutions, such as libraries, museums, cinematheques. National collective management organisations would be able to license works of unrepresented right holders with strong safeguards, such as appropriate publicity measures and the right of all right holders to opt-out from the mechanism at any time. EU legislation would also give cross-border effect to these licences under certain conditions.

The digitisation and dissemination of out-of-commerce works will continue to be based on a voluntary license but the reduced transaction cost will help cultural heritage institutions to digitise their collections.


What is the Creative Europe programme? How does it help creators?

To help Europe's creative industry the Commission also supports European culture, cinema, television, music, literature, performing arts, heritage and related areas through the Creative Europe programme. Between 2014 and 2020 Creative Europe will provide funding for at least 250,000 artists and cultural professionals, 2,000 cinemas, 800 films and 4,500 book translations.

To further support Europe's thriving cultural and creative sector, in parallel to today's copyright proposals, the Commission will:

  • Improve access to and the use of EU works online. This includes working with industry to streamline licensing practices and industry agreements for more sustained use and wider availability of European works; investing in online tools for the legal digital distribution of European works in countries where they have not been released in cinemas or where there is no national distributor; supporting a catalogue of European films to give VOD services a well curated catalogue of films from different producers; and promoting interoperable standard identifiers for seamless and reliable identification of works.
  • Promote wider access to EU works, and address linguistic barriers through more efficient funding subtitling and dubbing (including an online repository); investing in a European aggregator so that people can find more easily a legal offering of films online; promoting the use of data and automated tools for content recommendation, in view of developing and enlarging audiences for European works; working with film industry to promote the discoverability of European films and exploring joint promotion strategies for European co-productions; and creating and funding in 2017 a catalogue of European films for educational purposes to present the diversity and quality of European films to young audiences.
  • Exploring new business models, starting with the EU animation sector by discussing how animation films and television animation can travel even better and discussing how the sector can scale up.

What does the Commission propose to do to improve financing?

Earlier this year, the Commission and the European Investment Fund launched a €121 million guarantee initiative to support SMEs in the cultural and creative sectors via financial institution (see press release). In addition, the Commission is working with the industry to promote the use of alternative models of financing for the audiovisual industry and notably the development of new financial instruments to enable the sector to develop a more entrepreneurial approach.


What are exceptions and limitations to copyright?

Today’s copyright rules harmonise “exceptions and limitations” set out in a number of different EU Directives. Exceptions or limitations to an exclusive right mean that the beneficiary of the exception - an individual or an institution - is authorised by law to use protected content without the need to seek prior authorisation from right holders. Exceptions and limitations exist to facilitate the use of copyrighted content in certain circumstances and achieve specific public policy objectives such as education and research.

  • 1) 
    Supporting new ways of teaching and learning with online content

What is the issue with the current "teaching" exception?

According to existing EU rules, Member States may establish that no prior authorisation is needed if works (e.g. a book, a video or a broadcast) are used for the sole purpose of illustration for teaching. Today this is implemented differently across the EU and does not always enable the use of protected content in online courses or in digitally-supported teaching activities in classrooms. Also, the current rules do not apply when students take part in lessons, a course or training given at a distance by a school or university in other Member States.

What does the Commission propose?

The Commission proposes new rules to require all Member States to introduce mandatory exception or limitation in their national laws, covering digital uses of works or other protected content for the purposes of illustration for teaching. This will ensure that educational establishments can make available, in full legal certainty, teaching content to distance students in other Member States through their secure digital networks, e.g. a university's intranet or a school's virtual learning environment. The proposal introduces a specific legal mechanism to make sure that the new rules apply in cross-border situations.

  • 2) 
    Securing the use of text and data mining for researchers

What are text and data mining techniques? Why do researchers face legal uncertainty?

Almost all scientific journals are already available online, and around 2.5 million scientific articles are published every year. Text and data mining (TDM) techniques which allow vast amounts of digital content to be read and analysed have a great potential for research and innovation, and can thus bring considerable benefits to the economy. This is most often used in science and research, in particular to discover correlations between materials produced in different scientific fields and generate new knowledge. But because copies often have to be made, the current copyright rules create legal uncertainty as regards the use of TDM in research.

For example, today a national research centre which has concluded subscription contracts with publishers to gain access to large collections of scientific journals may not be able to perform TDM on this content or may be subject to different licences conditions of different publishers to do so. Also, because of different rules applicable to TDM in different EU countries, cross-border cooperation with research centres in other countries may be difficult.

How can the new rules improve researchers’ use of TDM, including on a cross-border basis?

The Commission proposes a new mandatory exception, which would require all Member States to permit research organisations acting in the public interest - such as universities and research institutes - to carry out text and data mining of copyright protected content to which they have lawful access, for example scientific publications they have subscribed to, without the need of a prior authorisation.

The exception will not apply to commercial companies. However, the text and data mining exception will benefit research organisations - who carry out research in the public interest - independently from the non-commercial or commercial purpose of the scientific research they carry out. Research organisations should also benefit from the exception when they engage into public-private partnerships. This is in line with the way European research policy work - encouraging universities and research institutes to develop partnerships with the private sector. The new TDM exception will allow universities and other research organisations acting in the public interest across the EU to make use of these innovative technologies in full legal certainty wherever they are in EU. It will also boost cross-border research projects.

According to an international survey, two-thirds of researchers who do not currently use TDM would be interested in learning more about it, showing the great potential of TDM techniques for the future of research and innovation.

A broader use of TDM could potentially increase researcher productivity by an estimated 2%, which would increase the volume of research conducted in Europe as well as its benefits.

  • 3) 
    Improving the preservation of cultural heritage

What is the situation today?

Libraries, archives, museums and other institutions preserve cultural heritage in their collections. Since preserving works requires copying them, many EU countries have national exceptions for a reproduction right for preservation purposes, by certain institutional users. However, the space allowed for preservation activities under national exceptions is however sometimes narrow, unclear or not adapted to cover preservation in digital environments or works in digital form. It also varies across Member States. This creates legal uncertainty for institutions, and may even prevent them carrying out preservation activities.

What is the Commission proposing?

The Commission proposes a mandatory EU-wide exception which gives cultural heritage institutions the right to copy works in a way that is suitable for the digital environment. This will cover works that were created directly in digital form, and the digitisation of works in analogue formats, and help audiences to access to them for longer.

V- IMPLEMENTING The Marrakesh Treaty to Facilitate Access to Published Works for Persons who Are Blind, Visually Impaired, or Otherwise Print Disabled

What is the Marrakesh Treaty?

The Marrakesh Treaty to Facilitate Access to Published Works for Persons who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘the Marrakesh Treaty’) was negotiated and adopted in 2013 under the auspices of the World Intellectual Property Organisation (WIPO). It aims at facilitating the availability and cross-border exchange of books and other print material in formats that are accessible to persons with print disabilities around the world.

The Treaty requires its parties to provide exceptions or limitations to copyright and related rights for the benefit of blind, visually impaired and otherwise print disabled persons, such as dyslectic people. The Marrakesh treaty also allows for the cross-border exchange of special format copies of books, including audio books and digital files, and other print material betweenthose countries that are parties to the Treaty. By signing the Treaty in April 2014, the EU has made a political commitment to implement it.

How does the Commission propose to implement the Marrakesh Treaty?

  • The proposed Directive introduced a mandatory exception for the beneficiaries of the Marrakesh Treaty in the internal market and cross-border effect to that exception. For example, an organisation acting on behalf of beneficiaries of the treaty in Germany may create an accessible format copy of a book and share it not only in Germany but also with similar organisations and beneficiaries for example in Austria. The choice of a directive in this regard will give Member States the possibility to implement the provisions taking into account the peculiarities of their respective legal systems.
  • The proposed Regulation will govern the exchange of accessible format copies with third countries which are parties to the Marrakesh Treaty. The rules would for example allow an organisation acting on behalf of the beneficiaries of the treaty in Spain to share accessible format copies with similar organisations and beneficiaries in countries outside of the EU that are parties to the treaty, e.g. Chile, Ecuador or Guatemala.

VI- Achieving a well-functioning marketplace for CREATORS, THE CREATIVE INDUSTRIES AND THE PRESS

Why does the Commission look at online services storing and giving access to user uploaded content?

Certain online services that allow users to upload copyright-protected content have become important channels of content distribution. Today, when consumers want to watch a video or listen to a song, they often go to websites such as YouTube, Dailymotion or Soundcloud. These services have an essential role in distributing content and compete with other content online providers like Spotify or Deezer. At the same time, the creators of the content - right holders from various sectors - do not always have the opportunity to decide on the use of their content or be remunerated for its use by the services based on user uploaded content. That's why the Commission's proposal aims to reinforce the position of right holders to negotiate and conclude agreements for the online exploitation of their content by online service providers with a significant impact on the online content market that store and provide access to the public to user uploaded content.

The Commission proposal obliges such service providers to take appropriate and proportionate measures to ensure the protection of user uploaded works, for example by putting in place content recognition technologies.

To ensure that these measures are efficient, cooperation between right holders and user uploaded content services is necessary, notably in order to allow the services to apply the measures to content as identified by right holders. The services will also need to be more transparent towards right holders on the measures used and their efficiency.

The Commission’s proposal doesn’t affect the way users share works protected by copyright online, it is up to the services to put the necessary measures in place. The proposal solely addressed the services as they are the ones distributing the content and, most importantly, making a profit out of it. The measures taken by the services and agreements concluded by them with right holders would benefit the users, which can upload their content with more confidence that the relevant rights are respected.

Overall, improving the situation for right holders will incentivise them to make more content available online, increasing thereby the consumer choice and ensuring legal certainty for all players.

Will the proposal impact start-ups and new innovative online services?

The proposal aims at creating a “level-playing-field” between services which distribute music, films, series and other content, and services that do the same but via user uploaded platforms. They focus on services that already play an important role for the consumption of content online, due to the significant amount of content they provide access to and the audience that they have. The proposal does not create new barriers for innovative services and start-ups which are likely to gain from more legal certainty and enhanced level-playing-field. The obligations in the Directive will only kick in when platforms gain a significant size in terms of the amount of protected content that gets uploaded in their system.

What are related rights or “neighbouring rights”?

Related rights or "neighbouring rights" are rights similar to copyright but that do not reward the creators' original creation. They reward the performance of the work, for example by a musician, a singer or an actor; or an organisational or financial effort, for example by a producer who is involved in the creation of a film. The current copyright law grants neighbouring rights to performers, film and record producers and broadcasting organisations. With the draft Directive adopted today, the Commission proposes to grant such rights to press publishers.

Why is a new related right for publishers needed?

Newspapers, magazines and other publications have a fundamental role for a pluralistic society and the democratic debate. The shift from print to digital has enlarged the audience of newspapers, magazines and other publications, notably through online services such as news aggregators and social media, but it has also made the licensing and enforcement of the rights in these publications increasingly difficult. Under current copyright legislation news articles, photos and other content included in a press publication are protected by the copyright of the authors. However, press publishers face problems when seeking to licence this content to online service providers or to protect it against online infringements including before courts.

What will a new related right for the press publishers change?

The new Directive seeks to address and simplify this situation by introducing a new related right for press publications. It will ensure that the organisational and economic contribution of press publishers - such as newspaper and magazine publishers - is recognised and incentivised in EU law, as it is today the case for other creative sectors who also benefit from related rights, e.g. film and phonogram producers, broadcasters. This means publishers will be able to rely on their own right when seeking to conclude licenses agreements with online service providers or filing a lawsuit for infringements. Overall, the Commission expects that the new related right will give the press industry stronger bargaining position to protect their investments, explore new business models and eventually complete its transition to the digital environment.

What problems are authors and performers encountering in terms of remuneration?

In order to exploit their works, authors and performers often rely on others, such as publishers or producers, to whom they license or transfer their rights. Due to a lack of transparency these creators are often unable to monitor the use and measure the success of their works online. This has become even more difficult given the increasingly complex online distribution of works.

What is the Commission proposing to improve their situation?

In order to enable authors and performers to understand and follow the exploitation of their works, the Commission is proposing targeted measures to increase transparency and balance in their contractual relationships.

Authors and performers will be better informed by their contractual partners (such as their publishers or their producers) on the exploitation of their works. Naturally, the differences between creative sectors would be taken into account. The Commission also proposes to keep transparency obligations at a proportionate level.

The Commission also proposes a mechanism for authors and performers to rebalance contracts where the agreed remuneration turns out to be disproportionately low compared to the revenues generated by the work, and also a suitable forum for alternative dispute resolution.

What are the next steps of the Commission to modernise EU copyright rules?

The four legislative proposals presented today will be submitted to the European Parliament and to the Council for adoption. Together with the proposal for a Regulation on cross-border portability of legal content, which is currently being discussed by the co-legislators, today’s rules modernise the EU copyright framework to make it work in the Digital Single Market. It also aims at supporting European creativity in all domains.

The Commission will also bring forward a number of other measures set out in the Communication of December 2015 over the coming months, such as a stronger enforcement of intellectual property rights, including copyright.

These amendments to the EU IPR law will, for instance, clarify the scope and application of provisional and precautionary measures and injunctions and clarify the rules for the calculation and allocation of damages. The Commission will also explore how to make it easier to issue provisional and precautionary measures or injunctions for the same infringements against similar addressees across borders.

For more information:

Press release: State of the Union 2016: Commission proposes modern EU copyright rules for European culture to flourish and circulate

Factsheet on Copyright

More on text and data mining (TDM)

Documents adopted today:

Communication - Promoting a fair, efficient and competitive European copyright-based economy in the Digital Single Market

Proposals for: