infoJustice

Christophe Geiger, Giancarlo Frosio, Oleksandr Bulayenko

The European Commission’s planned copyright reform proposes to adapt EU law to the challenges emerging in the Digital Single Market (DSM).[1] In particular, new mandatory exceptions and limitations should contribute to improving the creative ecosystem in the digital environment. This CEIPI Opinion does support the plan to develop a—much needed—strategy to take copyright into the 21st century and make it functional to the DSM, especially by addressing important needs with regard to access to copyrighted works in order to boost creativity and innovation, promoting cumulative research and sharing of knowledge-based resources. CEIPI moreover fully endorses the goal of the proposal of lowering barriers to research and innovation in the EU DSM; however, in order to address these issues in a satisfying manner, this opinion strongly suggests an expansion of the reform’s scope. In particular,

• The introduction of mandatory exceptions and limitations is a welcome, innovative arrangement that promotes harmonization and, therefore, the DSM. Obviously, focus on facilitation of research, teaching and preservation of cultural heritage stands as a primary need for the promotion of the DSM. However, this reform should be an opportunity to consider also additional exceptions and limitations that are crucial in a knowledge-based society and to reflect on the future design of an “opening clause” to address uses that are not yet covered by existing exceptions and limitations but are justified by important public interest rationales and fundamental rights such as freedom of expression and the right to information[2]. Moreover, a true harmonisation of the DSM will only be achieved if all exceptions and limitations provided in past EU copyright instruments are declared mandatory and have thus to be implemented as such in national law. A recent study done for the EUIPO by CEIPI researchers involving an analysis of the copyright legislation in 28 Member States revealed that there are major uncertainties for consumers to know what is permitted or not with regard to exempted uses in copyright law, as “‘everyday’ uses of copyrighted works in the online world currently still lack a clear and straightforward answer as regards their legality”.[3]
• Given the uncertainties that researchers face in applying present exceptions and limitations to text and data mining (TDM), a new mandatory exception might drive innovation and bridge the gap with other jurisdictions. In particular, application to commercial and non-commercial uses and prohibition of contractual override should guarantee effective results, although limitations to technological blocking should be introduced as well by clearly spelling out that both Technological Protection Measures (TPMs) and network security and integrity measures should not undermine the effective application of the exception. Moreover, the TDM exception should not be limited to research organisations but extended to all those enjoying lawful access to underlying mined materials—as the right to read should be the right to mine—especially in order not to cripple research from start-ups and independent researchers.
• The new mandatory teaching exception does promote the DSM agenda by facilitating digital and cross-border teaching activities. The introduction of a voluntary scheme to limit the exception’s applicability—if an adequate licence is easily available on the market—would nonetheless work against harmonization, undermining positive externalities of the mandatory approach. As per the adequacy of the licence, this notion would be hard to determine and, thus, if loosely construed, undermine the new exception. Finally, the scope of the exception should be expanded in order to match with the teaching and research exception included in Directive 2001/29/EC. Any wording that would be diminishing the scope of the teaching limitations might have the opposite effect of forcing national legislatures which have implemented the provision of the InfoSoc Directive to modify their legislation in a restrictive manner, diminishing the permitted uses for teaching purposes and creating further uncertainties in the EU. The proposed reform emphasises the role of European cultural heritage in the DSM through the introduction of an exception for its preservation. The new exception expands previous voluntary exceptions to facilitate mass preservation projects and allow reproduction in any format and medium including format-shifting and digital copying. Possibly, beneficiaries should also include educational institutions. Again, the new exception should reach also objects not permanently in the collection of beneficiaries as this limitation might stifle collaboration efforts between Cultural Heritage Institutions (CHIs) to share artworks within the DSM. Finally, the exception should include a limitation to contractual as well as technological override.

Click here for the full Opinion of the CEIPI.

————

1. This is the second in a series of position papers dedicated to the upcoming Digital Single Market Copyright reform. The first paper Christophe Geiger, Oleksandr Bulayenko and Giancarlo Frosio (2016), Opinion of the CEIPI on the European Commission’s Copyright Reform Proposal, with a Focus on the
Introduction of Neighbouring Rights for Press Publishers in EU Law, CEIPI Research Paper No. 2016-01 is available at: https://papers.ssrn.com/sol3/papers=2921334. A slightly amended version was published under the title “The Introduction of a Neighbouring Right for Press Publisher at EU Level: the Unneeded (and Unwanted) Reform” in the European Intellectual Property Review (EIPR) 2017, pp. 202-210.

2. As the Explanatory Memorandum to the directive Proposal admits, the Directive proposal will only have a “limited impact […] on the freedom of expression and information, as recognised respectively by Articles 16 and 11 of the Charter, due to the mitigation measures put in place and a balanced approach to the obligations set on the relevant stakeholders”.

3. Christophe Geiger and Franciska Schönherr, Frequently Asked Questions (FAQ) of Consumers in relation to Copyright, Summary Report (A project commissioned by the European Union Intellectual Property Office, 2017), p. 8, available at: https://euipo.europa.eu/ohimportal/en/web/observatory/news/-/action/view/3423769; (noting that “[c]opyright law throughout the EU does not give unanimous answers to Consumers’ 15 Frequently Asked Questions. While international and EU law have approximated the different copyright traditions to a certain extent, a closer look reveals that divergences still prevail. These might relate to the fact that even in areas that have already been the subject of harmonization measures, Member States have often not implemented provisions of EU secondary legislation in a uniform way. Moreover, some key aspects of copyright law have not been harmonised so far. The result is the following: even if a few common basic principles can certainly be identified, the exceptions to these principles as well as their implementation vary significantly”, p. 6). The study lists exceptions and limitations to copyright as one of the areas of major divergence in national copyright law.