Update on copyright in the Digital Single Market

The Digital Single Market Strategy identified the need to “reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU”. The Commission subsequently outlined targeted actions and a long-term vision to modernise EU copyright rules; this article focusses on one of the measures which aims to address some of those specific actions and issues.

The proposed Directive considers a variety of issues, and the draft report of the Committee on Legal Affairs on the proposal for a directive on copyright focusses on topics including, but not limited to:

• Text and data mining;
• Use of works and other subject-matter in digital and cross-border teaching activities;
• Rights in publications; and
• Fair remuneration of authors’ and performers’ contracts.

This article will look at some of the recommendations on these four issues. A copy of the complete Report can be found here.

Text and data mining

Text and data mining allows for the reading and analysis of large amounts of digitally stored information in order to gain new knowledge and discover new trends. For text and data mining to occur, information needs to be accessed and reproduced (or ‘normalised’). This normalisation constitutes copyright-protected use as it is a reproduction by change of format of the information, or extraction from a database into a format capable of being processed. The relevant process in text and data mining is not the mining process itself, but the access and normalisation of information in view of its automated analysis.

The Report identifies that an exception is required to address the reproduction or extraction carried out during the normalisation process as this is not already regulated in the copyright acquis (unlike the process of access to information protected by copyright which is regulated).

Research organisations often have difficulty in obtaining access to the many scientific publications that are required for research by text and data mining and, in order to facilitate innovation and research, publishers are obliged to provide those organisations with normalised datasets. The Report suggests that where normalised data sets are provided by publishers, compensation may be required by those publishers to cover the costs of the normalisation.

Use of works and other subject-matter in digital and cross-border teaching activities

The Report also identifies that the use of copyrighted material for illustration in teaching must be limited to truly educational activities, and this exception needs to cover all formal schooling in schools and universities which are recognised or accredited as educational establishments by their relevant Member State’s systems of recognition and accreditation. However, the Report also recognises that restricting the exception solely to places where teaching takes place is inconsistent with the goal of lifelong learning and recommends that the exception should therefore be linked to recognised and accredited teaching activities, regardless of the structural context.

In order to extend the scope of the exception to include these recognised and accredited teaching activities, the Report suggests the following definition at Amendment 30:

‘teaching activity’ means an educational process taking place either on the premises of an establishment recognised or accredited by the relevant national authority as an educational establishment, or within the framework of an education programme recognised or accredited by the relevant national authority.

Rights in publications

Copyright solutions affect both the rightholders, and all stakeholders who access the copyright in question, and the solutions must therefore be adequate, necessary, proportionate and focussed.

Digitalisation makes it easier for the contents of press publications to be copied or reused, and press content used by others is clearly disproportionately harmful to the financial interests of press publishers. However, digitalisation also makes it easier to access news and press and using digital technology to facilitate the finding of news and press is not necessarily harmful to the financial interest of publishers. Indeed, in some cases these online linking systems (such as hyperlinks) make it easier for users to access online news portals.

The Report recognises that press publishers depend on the enforcement of their rights to protect their investment in publication and suggests that measures are needed to strengthen the enforcement position. The amendments therefore recommend that press publishers are given legal standing to bring proceedings in their own name over the infringement of the rights of the authors of the published works, and also recommends that press publishers are presumed to represent the rightholders of those who contribute to their publication.

Fair remuneration for authors’ and performers’ contracts

The Report indicates that authors and performers face the greatest challenge in ensuring fair remuneration for the exploitation of their works and performances from those to whom they have licenced or transferred their rights.

The Report therefore recommends the following four measures:

• A declaration on authors’ and performers’ right to fair remuneration;
• Increased transparency;
• Contract adjustment mechanisms; and
• More accessible redress.

According to the Report, authors and performers are given better representation for the recognition and enforcement of copyright under Articles 14, 15 and 16 of the proposed Directive.

Reactions from MEPs

Whilst in general the Report has been praised as being well-balanced, and an improvement on the Commission’s original proposal, there are still many contentious areas and agreement on the Report is not to be expected immediately.

It was widely agreed that a fair balance must be struck between the protection of creative content, and what access there is to that content. It is also generally agreed that remuneration should be fairer in the sector, and several MEPs have expressed disappointment that the Report has not done enough in relation to fair remuneration for authors’ and performers’ contracts; one suggestion has been to introduce a direct compensation mechanism in order to achieve this.

Additionally, whilst most of the MEPs have welcomed the amendments in relation to rights in publication, some disagree that there is a need to create more rights for publishers and have suggested that there is a risk of over-complicating matters.

The full JURI Committee meeting can be streamed here.

The deadline for tabling further amendments has now passed and the debate is expected to continue when these amendments are considered by the Committee on 3 May 2017.