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The new look of copyright law – European Commission’s proposals

The European Commission has presented a set of changes to the copyright law. They are supposed to affect the quantity and variety of works and other protected content available on-line, improve the clarity of rules for entities operating on-line and strengthen the position of copyright holders and related rights holders in negotiating license agreements, including improved possibilities for receiving remuneration for the use of protected content on digital platforms.

The aim of changes is to also strengthen the position of newspaper publishers in electronic trading by granting them new rights, similar to those of film producers, record producers and other entities operating in creative industries. The amendment also provides for upgrading the provisions on fair use. It has been formulated in four legislative proposals (draft regulations and directives) which the European Commission presented on 14 September 2016 during the State of the Union address.

Increasing the quantity and diversity of protected content on the Internet

The new provisions make it easier for broadcasters to obtain licenses from copyright and related rights holders for broadcasting on-line in other Member States, within the framework of simulcasting and catch-up services (which introduce the country of origin principle known from the so-called Satellite and Cable Directive). It will also be easier for operators offering packages of TV channels (remission services) to obtain permits from copyright and related rights holders. The provisions contained in the draft Directive on Copyright in the Digital Single Market (hereinafter the “Directive”) also oblige the Member States to set up impartial bodies, supporting the copyright holders in negotiating licensing agreements with suppliers providing video-on-demand (VoD).

The draft Directive also makes it easier for institutions protecting national heritage (e.g. museums, archives) to digitize and share abroad  works  and objects of related rights that are permanently in their collections and are otherwise not available on the market.

Strengthening the rights of creators and other copyright and related rights holders

In the draft Directive, the Commission proposes that service providers storing and sharing works or objects of related rights, i.e. on platforms such as YouTube or Dailymotion, be obliged to use technology of automatic recognition of protected content and to inform the right holders as to the technologies applied. Thanks to the changes, creators, artists, and producers will be able to identify works and other protected content shared by certain suppliers and control their use.

Moreover, the Directive requires Member States to ensure the transparency of the process of exploitation of protected content. Creators and artists are to receive from operators to whom they license or transfer their rights regular information on the use of their works or artistic performances, including remuneration and profits obtained by such entities. With the above privilege comes the right of creators and artists to request additional remuneration from the entity that has entered into an agreement with them on the exploitation of their rights in the event that the remuneration provided for in the contract is disproportionately low compared to the profits and benefits obtained from the use of rights by that entity.

New laws of newspaper publishers

The Directive requires Member States to guarantee to newspaper publishers additional rights in relation to the digital use of their press releases (including the exclusive right of reproduction of publications and making them public). Rights of publishers are to expire after 20 years from the date of publication. The granting of additional rights to publishers arouses much controversy. For example, it is argued the new rights of publishers will lead to a situation in which the use of even short excerpts of publications by search engines or content aggregators (in the form of so-called “snippets”), or even linking, will require permission from the publisher, as well as payment of compensation in his favor.

Objections to the above concept of new rights for publishers have been raised by e.g. the Digital Centre, EuroISPA (bringing together associations representing Internet service providers), Digital Europe, EDiMA (whose members are, inter alia, Allegro Group, Amazon EU, Apple, eBay, Facebook, Google, LinkedIn, Microsoft, PayPal, Twitter, and Yahoo!). In contrast, the concept has met with the support of communities representing publishers. For example, the Polish Chamber of Press Publishers has prepared a manifesto expressing support for the proposed changes and it is collecting signatures of the representatives of publishers and editorial offices.

Changes in provisions on fair use

The Directive also provides for modification of national legislation on fair use of works, objects of related rights, computer programs and databases. The changes involve the introduction of new exceptions for scientific institutions for  the purpose of  exploring texts and data for the purpose of scientific research; for educational institutions for the purpose of illustration in teaching – including cross-border teaching – through digital technology (e.g. on-line courses); and for institutions protecting national heritage in order to record into any format (also in digital form) works and other protected content that are permanently in their collections.

The Commission also intends to oblige Member States to guarantee the possibility of creating copies of works and other protected content without the consent of their right holders in order to allow the blind, partially sighted, and persons with a disability preventing them to read the printed material to get acquainted with such works and content and to exchange such copies between the EU states and third countries.

What’s next?

The legal acts proposed by the European Commission are subject to change pending further legislative procedure in EU institutions. Currently, the Ministry of Culture and National Heritage prepares an official position of the Polish government on the proposed changes. The final shape of the regulations implementing the described changes also depends on how they will be transposed into national law. The most significant changes are to be introduced through the Directive (the Directive on Copyright in the Single Digital Market), which requires transposition into national law. There is a risk that these changes will not be reflected equally in the laws of Member States.

What will be the effect of this law-making initiative of the European Commission, only time will tell. One thing is for sure: there will be a number of heated discussions and tests for the lobbies of different environments. We will keep an eye on this.


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