The Ceipi Publishes An Sentiment On The Eu Commission’S Copyright Reform Proposal

The Center for International Intellectual Property Studies (CEIPI) which is role of my alma mater, the University of Strasbourg, published on Nov 28, 2016 its Opinion on the European Commission’s copyright reform proposal (the Opinion). The Opinion, which was written past times Professor Christophe Geiger, PhD candidate Oleksandr Bulayenko, in addition to Senior Researcher Giancarlo Frosio, focuses on the introduction of neighbouring rights for press publishers inwards European Union law. It argues that the recent Directive proposal would arrive harder to accomplish the Digital Single market. The authors of the Opinion conclude past times recommending “to refrain from advancing this legislative action.” The CEIPI sent its Opinion to the European Union Commission on Dec 2.

What Are the Commission’s Proposals re Neighbouring Rignts??

The Commission adopted inwards May 2015 its Digital Single Market Strategy, which destination is to trim down the differences betwixt the copyright regimes of the Member U.S.A. in addition to to permit plant to hold upward widely accessed online across the EU.

Following a consultation on the role of publishers inwards the copyright value chain, which the European Commission had launched on March 23, 2016, the Commission introduced on September 14, 2016 its Proposal for a Directive of the European Parliament in addition to of the Council on Copyright inwards the Digital Single Market (the Proposal).

The Opinion concentrates on the neighboring rights that the Proposal would give to publishers. The Impact Assessment on the modernization of European Union copyright rules, also published past times the Commission on September 14, provides a helpful overview of the rights provided to the publishers inwards diverse fellow member U.S.A. (see Part 3/3, p. 189-192).

The Opinion cites the instance of the High German constabulary on Authors’ in addition to Neighbouring Rights which gives merely about exclusive neighbouring rights to press publishers, such as making available for commercial role whatever publications in addition to parts thereof. This, as noted inwards the Opinion, takes “only private words or the smallest text excerpts” out of the orbit of the constabulary (Opinion p. 6). Influenza A virus subtype H5N1 Castilian constabulary provides press publishers the correct to hold upward remunerated for making available online non-significant fragments of their publications. The Opinion notes that the legality of this correct has been questioned, for instance here (Opinion p. 6).

The Opinion notes that they are tensions betwixt press publishers in addition to online service providers inwards several countries, Belgium, French Republic in addition to Italy. Such tensions bespeak maintain been addressed past times signing agreements, non past times enacting novel laws. For instance, a fiscal fund financed past times Google has been position inwards identify inwards France. It is intended to supply fiscal back upward for projects of publishers of political in addition to full general data sites. Influenza A virus subtype H5N1 similar Italian fund is also financed past times Google, which also finances the EU Digital News Initiative (Opinion p. 7).

Article 11(1) of the Proposal directs Member U.S.A. to supply publishers of press publications alongside the neighboring rights provided for inwards Article 2 in addition to Article 3(2) of Directive 2001/29/EC for the digital exercise of their press publications. This agency that the “publisher’s neignboring rights would comprehend the correct of reproduction in addition to making available to the populace for digital uses” (Opinion p. 11).

Under Article 12 of the Proposal, Member U.S.A. could supply a publisher, to whom an writer has transferred or licensed a right, the correct to part the compensation for the uses of the function made nether an exception or limitation to the transferred or licensed right.

The authors of the Opinion regime annotation that the combination of these 2 articles may give publishers 2 revenue streams, if both copyright in addition to neighboring rights bespeak maintain the same exceptions in addition to limitations: the publishers would have a revenue both as holders of the neighbouring rights  and as transferees or licensees of authors’rights (Opinion p. 12).

The Proposal Would Make it Harder to Reach the Digital Single Market

Member U.S.A. bespeak maintain each their ain copyright in addition to neighbouring rights laws. The Opinion states that:

“the Impact Assessment fails to explicate how an additional layer of 28 national rights mightiness promote the Digital Single Market. Rather the proposal poses farther challenges related to the territoriality of rights in addition to their fragmentation” (Opinion p. 8).

This is a concern, peculiarly since the Proposal “does non pre-empt the re-emergence of novel national legislation extending rights of press publishers. Member U.S.A. yet stay gratuitous to practise other neighbouring rights inwards their national law” (Opinion p. 8). The authors signal out that our ain Eleonora Rosati has questioned the lawfulness nether European Union constabulary of allowing Member U.S.A. to practise neighbouring rights.

The authors of the Opinion are also concerned past times the facts that the exceptions in addition to limitations to authors’ rights, which are currently applicable to those rights inwards the Member States, may non hold upward as applied to the neighbouring rights. For instance, national laws could regulate differently when in addition to if such exceptions tin hold upward overridden past times contract or technical protection measures (Opinion p. 9).

Allowing Member U.S.A. to each practise their ain neighboring rights in addition to fifty-fifty expanding them could fragmentize the Digital Single Market, in addition to hence wound it. The authors of the Opinion advocate instead for the enactment of a unitary correct (Opinion p. 9).

Proposal Would Reduce the Economic Value of Creative Works

The authors of the Opinion combat that if to a greater extent than economical actors tin part the revenues of creative activities, the authors may lose role of their revenue, as the fiscal pie is non getting bigger fifty-fifty spell to a greater extent than guests are invited to partake. The “pie theory” explains that “new royalties stemming from neighbouring rights are going to hold upward distributed at the expense of those receiving royalties from authors rights today” (Opinion p. 11, citing this recent article past times Joseph Pomianowski).

There is a adventure that publishers from other sectors than the press, such as music publishers, would asking neighbouring rights, which could farther trim down authors’revenue (Opinion p. 9). Granting rights to to a greater extent than actors “will decrease the economical value of each rights” (Opinion p. 10). However, the “pie” is non getting bigger (Opinion p. 12).

No Causal Link Between Publishers’ Revenues in addition to Granting them Neighbouring Rights

Publishers by in addition to large handgrip the economical rights of authors, nether diverse legal schemes, such as contract or function for hire (Opinion p. 13). Not every publisher believes it must bespeak maintain neighboring rights, in addition to merely about bespeak maintain fifty-fifty argued that they are non necessary. Even if publishers are sometimes called into courtroom if a function has been infringed, granting them neighbouring rights “will non alter the burden of proof for proving ownership of authors’ rights inwards court” (Opinion p. 14). For these reasons, in that place is no “causal link supporting the introduction of novel rights” (Opinion p. 14).

The Scope of Protection is Overbroad

The authors of the Opinion are troubled past times the fact that the Proposal “does non bound the bailiwick affair to plant in addition to uses before long protected past times authors’ rights.” Even unoriginal plant could hold upward protected past times neighbouring rights (Opinion p. 16). Works from the populace domain could hold upward protected as well, in addition to plant published nether a populace copyright licenses could hold upward restricted past times such rights (Opinion p. 17). Restricting the public’s exercise of plant inwards the populace domain “imping[es] greatly on liberty of human face in addition to democratization.” This would bespeak maintain repercussions on the powerfulness of people of lesser agency to disseminate their oral communication in addition to would instead favor large corporations (Opinion p.17). The Authors also combat that the proposed term of protection, xx years, is “way likewise long” (Opinion p. 18). 

The authors conclude that introducing neighbouring rights for press publishers volition practise novel European Union copyright issues instead of solving them.

The Opinion is a really interesting read, in addition to this is both my impartial blogger persuasion in addition to my hometown partial Alsatian opinion.

European Commission Image is courtesy of Flickr user Kevin White nether a CC BY-NC-ND 2.0 license.