Considering the changes introduced by our digital environment and the constantly emerging new technologies, the European Commission has launched various studies, brainstorming, consultations and plans of action since 2011 in order to modernize and harmonize copyright protection in the European Union. This initiative forms part of the Commission’s strategy to establish “a single market for Intellectual Property rights”. The former Commission, however, did not succeed in presenting practical measures since the proposed reform was considered insufficient for certain European officials.

The current Commission, which took office in November 2014, made a priority of growth and employment matters and accelerated the reform process; and the president of the Commission considered the single digital market as a key element for economic growth. To achieve said priorities, it was clearly stated that it was necessary to “dismantle national barriers with respect to copyright regulations” in order to “unlock creativity”, with minimal regulations.

Julia Reda, Member of the European Parliament and member of the Pirate Party, was appointed at the end of 2014 to draft a report, which was presented to the European Parliament early 2015. Said draft report suggested in particular:

• The removal of territorial restrictions to copyright and promotion of cross-border access to content;

• The harmonization of conditions for protection, especially by introducing a single European title applicable in all Member States (which would also contribute to the removal of obstacles resulting from the territorial restrictions applicable to copyright as indicated above), and the duration of copyright;

• The harmonization and strengthening of exceptions and limitations to copyright[1].

This text has been the subject of heated debates and substantial lobbying from intellectual property professionals and certain Member States, especially and most importantly France. The disputes were essentially centered around the following competing interests: on the one hand, liberalization of creativity and rights of consumers, and on the other hand, protection and security of authors and rights holders. The debates also focused on the balance of power between industries and authors and artists, as well as the particular interests of each Member State. Another important issue which was discussed was the level of copyright protection each Member State could provide in the event of general harmonization.

In the end, more than 500 amendments were submitted to the draft report: the European Parliament adopted a non-legislative resolution on July 9, 2015[2] which substantially modified certain proposals considered as too “drastic”.

By way of example:

• Regarding exceptions and limitations to copyright:

(i) Whereas the draft report contemplated a total harmonization and a mandatory application of the exceptions and limitations to copyright, the Members of Parliament considered that each Member State should be free to legislate further on such exceptions according to its specific cultural and economic interests, however with the implementation of minimum standards to said exceptions and limitations;

(ii) Certain exceptions proposed in the draft report, and which could have considerably broaden the forms of exploitation of the works by consumers, have either been removed (including the acknowledgment of a ‘right of quotation’ in the audiovisual sector) or limited (the proposal implementing a compulsory exception enabling libraries to lend books to the public in digital format irrespective of the location of access was for instance regulated regarding the use contemplated, duration, goal, and possible introduction of a fair compensation to the authors).

• Regarding territoriality and accessibility of content and services:

While territoriality was questioned in the draft report, the Parliament finally called “for a reaffirmation of the principle of territoriality” in order to enable each Member State “to safeguard the fair remuneration principle”. Indeed, certain Members of Parliament argued that territoriality enables an increase of the revenues generated in each territory, thereby contributing to the financing of the works, and consequently ensuring fair compensation to authors and rights holders.

The Members of Parliament, nonetheless, emphasized the importance of improving accessibility and portability of services and content in order for consumers not to be denied access to content services for geographic reasons, and urged the Commission to propose appropriate measures in this regard.

It therefore appears that the debate is still open.

However, the Parliament confirmed its willingness to potentially harmonize the duration of copyright or to invite the Commission to analyze the impact of a single European copyright title for Member States. It also expressed its wish to adapt and create new exceptions in the digital era[3].

Considering the growth of services such as Netflix, the issues at stake in this reform are essential for competitiveness and development of European services as well as for reinforcement of consumers’ rights. Such issues are, however, subject to objections and claims from certain intellectual property actors. Copyright harmonization at the European Union level seems therefore quite complicated and must necessarily take into consideration the various interests. The European Commission should present a proposal of legislative revision at the end of the year and we look forward to hearing the position taken by the Commission.

[1] The draft report contains numerous proposals that we have not presented nor developed for purpose of this article.

[2] European Parliament resolution of 9 July 2015 on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

[3] The non-legislative resolution includes various proposals and suggestions which are not presented nor developed for purpose of this article. You can find the resolution via the following link: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2015-0273+0+DOC+XML+V0//