French Representatives Speak Over Eu Committee Copyright Proposal

The Commission of European Affairs of the French lower Chamber, the Assemblée Nationale, examined finally calendar week a report on copyright protection inwards the European Union (EU), written past times Representatives Marietta Karamanli as well as Hervé Gaymard (the Rapporteurs).

The Commission published on September fourteen its proposal to update the European Union copyright laws, which include a here for Eleonora’s review on the IPKat blog). The Representatives’ study was written earlier the Commission publication, simply it anticipated the proposals. The Rapporteurs, however, practice non appear quite interested inwards change. They practice non believe it is necessary to modify Directive 2001/29, the InfoSoc Directive, as well as fifty-fifty believe it would endure “inauspicious,” every bit the InfoSoc Directive“ does non found an obstruction to the structure of a large digital unmarried market” every bit envisioned past times the European Commission.

Mandatory harmonization of exceptions? Well… peut-être…

The Rapporteurs are against mandatory harmonization of exceptions of the rights of reproduction as well as communication to Blue Planet inwards all the Member States, every bit it had been recommended past times Julia Reda’s report, because “[n]ational flexibility inwards this plain is a prerequisite for the evolution of a stable environs for creators as well as conducive to creativity.”

During the Oct eighteen coming together of the Commission of European Affairs (video is here), Hervé Gaymard stressed the importance of strictly supervising these exceptions (encadrement strict), which selection as well as implementation, according to him, are best left to the Member States

As of now, the InfoSoc Directive lays out xx exceptions to the exclusive rights of copyright holders which Member States may or may non chose to implement inwards their laws. The InfoSoc Directive’s entirely mandatory exception is set out inwards its article 5.1., which directs Member States to exempt from the reproduction correct temporary acts of reproduction which sole piece of occupation is to enable a transmission inwards a network betwixt tertiary parties past times an intermediary, or a lawful use, such, for example, “caches” as well as other technical copies made past times users of computers for faster access past times websites. Articles 5.2 as well as 5.3 of the Directive provides a listing of exceptions which Member States may take away to implement. Recital 32 of the InfoSoc Directive specifies that this listing of optional exceptions is “exhaustive.”

This led to Member States having quite a dissimilar copyright framework. We saw finally week that French Republic recently, simply somewhat reluctantly, implemented the ‘freedom of panorama’ police pull inwards its IP Code. Other Member States implemented this exception to a greater extent than broadly, or non at all.

The European Union Commission noted inwards its 2015 Communication towards a modern, to a greater extent than European copyright framework that:

“[t]he fragmentation of copyright rules inwards the European Union is especially visible inwards the surface area of exceptions. The exceptions gear upwards out inwards European Union police pull are, inwards most cases, optional for Member States to implement. Often exceptions are non defined inwards detail. As a consequence, an exception inwards the police pull of i Member State may non be inwards a neighbouring one, or endure dependent plain to dissimilar weather condition or vary inwards scope. In to a greater extent than or less cases the implementation of a given exception inwards Member States' police pull is narrower than what European Union police pull permits. Most exceptions practice non take away maintain effect beyond a given Member State. “

New mandatory exceptions may endure ahead. Article 3.1 of the proposal for a novel Directive would practice a mandatory exception “for reproductions as well as extractions made past times enquiry organisations inwards lodge to deport out text as well as information mining of plant or other dependent plain thing to which they take away maintain lawful access for the purposes of scientific research.” This novel exception was discussed at the Oct eighteen meeting, as well as Hervé Gaymard is favorable to it, simply entirely if it leads to non-commercial works.

Article four of the novel directive would supply an exception for “the digital utilisation of plant as well as other subject-matter for the sole piece of occupation of illustration for teaching.” Hervé Gaymard declared to endure favorable to this exception, every bit MOOCs must endure allowed to develop, simply entirely if inwards accordance to the French police pull as well as if it is not, for example, detrimental to the French schoolhouse books market.

Article five of the novel Directive would supply an exception for “cultural heritage institutions, to brand copies of whatsoever plant or other subject-matter that are permanently inwards their collections, inwards whatsoever format or medium, for the sole piece of occupation of the preservation.” Hervé Gaymard is inwards favor of this exception, which would practice goodness France’s patrimony.

Mr. Gaymard concluded that the Rapporteurs were inwards favor of novel mandatory exceptions, simply entirely if they were they are framed, proportionate to the aim pursued as well as if they are non detrimental to creators’ income.

No fair use, non!

The Rapporteurs are suspicious of the American fair use, because it is unpredictable as well as “potentially unfavorable to creation” as well as is fifty-fifty “likely to displace pregnant harm to the authors.” The authors mention the Hargreaves Review of Intellectual Property as well as Growth every bit a proof of the “potentially harmful nature” of fair use. Indeed, this study had concluded that the Britain was ameliorate off without fair use, every bit “significant difficulties would arise inwards whatsoever effort to transpose USA vogue Fair Use into European law “(see paragraph 5.19 of the Hargreaves Review).

The Hargreaves Review supported the utilisation of the exceptions scheme every bit applied inwards the EU, rather than the USA fair utilisation system, although interpreting this study every bit maxim that fair utilisation is of a “harmful nature”, every bit the Rapporteurs did, may endure a fleck of a stretch. The Hargreaves Review presented to a greater extent than or less of the positive aspects provided past times fair use, which the Rapporteurs chose non to report. One of the positive aspects of fair utilisation reported past times the Hargreaves Report is that it allows USA judges “to accept a persuasion every bit to whether emerging activities inwards relation to copyright plant should legitimately autumn inside the range of copyright protection or not” without the ask of the intervention of the legislature. One tin dismiss sympathise that the Rapporteurs are non great on giving such powers to the French courts. French Republic is, later on all, a civil police pull country, non a mutual police pull country.

Data portability, pourquoi pas?

Finally, the Rapporteurs “welcom[ed] the proposal for a regulation for cross-border portability of content, which volition let users to enjoy, wherever they are inwards the territory of the Union, the programs to which they subscribed inwards their State of habitual residence. But they stress the thought that portability should endure strictly temporary, as well as that temporality must endure a precise definition, without which the village would disproportionately infringe the regulation of territoriality of rights, which is the base of operations of the financing scheme for the creation, notably inwards France.”

This is entirely the kickoff of the give-and-take almost the European Union Commission proposals. Stay tuned…

Picture courtesy of Flickr user Cata Fuentealba nether a CC BY 2.0 license.