Publishing in the Digital Single Market
Whilst a fully harmonised EU copyright law is still some way off, digital publishers should take note of the reforms already announced and on their way to implementation as part of the Digital Single Market Strategy.
Whilst the European Commission believes that the Digital Single Market (DSM) Strategy will provide enormous benefit to both rights holders and those who access protected works, elements of the Strategy have caused unease in certain areas. For example, on 4 April 2016, the UK Government's Department for Business Innovation and Skills, along with ten other Member States, sent a joint letter to the Commission expressing concerns that the Strategy's initiatives might lead to over-regulation of online platforms. Within parts of the publishing industry, concerns have been longer held. Prior to the DSM Strategy being officially announced by the European Commission in May 2015, the UK Publishers' Association (PA) publicly rejected any need for copyright reform, arguing that a Digital Single Market across the EU already existed in the world of publishing as publishers generally license rights from authors on a pan-European, if not global, basis. By way of example, the PA stated that, for the purposes of a single language translation, the EU is treated as a single territory. The PA also considered that a proposed pan-European copyright would unfairly deprive some creators of long-established national rights that reflect cultural and legal traditions.
Portability
We have already seen draft legislation put forward by the Commission as part of the DSM Strategy in the form of a proposal for a Regulation on ensuring cross-border portability of online content services in the EU. The aim of this proposal is to remove barriers to cross-border portability to more effectively meet the needs of travelling consumers whilst at the same time maintaining high levels of protection for rights holders. This proposal, discussed further on our website, was announced in December 2015 and concerned various audiovisual media and creative content services, including for news and e-books.
The Regulation will allow cross-border portability of online content services which consumers currently have lawful access to in their country of habitual residence, through on-going subscription, purchase or rental, and to which they want to have continued access when they are “temporarily present” in other EU Member States. However, the PA considers that the barriers the portability proposals are intended to break down exist solely due to decisions taken by retailers and not because of copyright law.
The Marrakesh Treaty and text-and-data mining (TDM)
Publishers should also be aware of the new exceptions introduced as part of the DSM Strategy.
On 3 February 2016, the European Parliament (EP) adopted a Resolution on the ratification of the Marrakesh Treaty, which obliges every contracting party to provide in their national copyright laws for a limitation or exception to the rights of reproduction, distribution and making available to the public that will facilitate the availability of published works in accessible formats for the people who are blind, visually impaired, or otherwise print disabled (such as people with dyslexia) or physically disabled in a way that prevents them from effectively holding a book, turning pages or focusing on the page. Contracting parties may decide to limit such exceptions to cases where accessible format copies are not commercially available on reasonable terms to beneficiaries in their territory.
The Marrakesh Treaty will enter into force once it has been ratified by 20 WIPO members. In its Communication of 9 December 2015 on the modernisation of the European copyright framework under the auspices of the Digital Single Market Strategy, the Commission announced that it would propose legislation to implement the Marrakesh Treaty by introducing a mandatory, harmonised EU exception allowing for the making and dissemination, including across borders, of special formats of print material to the benefit of people with print disabilities.
The Treaty requires participating countries to introduce an exception to domestic copyright law that will allow visually impaired and print disabled people and their organisations (for example, in the UK, the Royal National Institute of Blind People) to make accessible format books without the need for permission from the copyright holder. In order to facilitate the availability of accessible versions of books across the EU, “authorised entities”, such as blind people’s organisations, will also be allowed to import and export adapted versions of books without first obtaining permission, which may then be received either by other “authorised entities” or directly by the individuals for whom they are produced.
Whilst an additional exception may, on the surface, give publishers cause for concern, given that, according to the World Blind Union, only approximately 1 – 7% of the world’s published books currently make it into accessible formats, this is unlikely to impact greatly on the publishing market.
The Commission has also identified what it considers to be a need for clarity in terms of TDM, the process through which vast amounts of digital content are read and analysed by machines, for the purposes of science and research. Similarly, the current EU exception which allows institutions such as libraries to allow on-screen consultation of works for research and private study only applies to terminals situated on the libraries’ physical premises and does not, therefore, take into account remote access. However, the PA argues that publishers have long been developing tools and services to enable TDM, often made available free of charge. The PA is concerned that a blanket exception will remove any level of control from publishers, something that it sees as vital in order to protect its members' interests.
Neighbouring rights and the panorama exception
On 23 March 2016, as well as seeking views on the "panorama exception", which allows member states to lay down exceptions or limitations to copyright concerning the use of works, such as works of architecture or sculpture, located permanently in public places (for example uploading images of statues online), the Commission launched an open consultation on a possible extension to publishers of neighbouring rights.
Rather than protecting an authors' original creation, as is the case with copyright, neighbouring rights protect either the performance of a work or an organisational or financial effort (for example by a producer) which may also include a participation in the creative process. Publishers do not currently benefit from neighbouring rights at EU level and the consultation therefore aims to gather views on any challenges faced by publishers under the current copyright legal framework. It considers what impact a change in EU law to grant publishers a new neighbouring right would have on them and on the whole publishing value chain.
The European Publishers Council has welcomed the news of this consultation, which will run until 15 June 2016, viewing at as an important step towards the much need recognition of the role and value of the press "in a global digital and media environment”.
If you have any questions on this article please contact us.
Related articles
Is there still room for traditional publishing in the digital age? 
Publishing online to the world: do you need to seek advice everywhere?
Austria: Copyright levy system declared unlawful by Court of Appeal
Data protection milestones in the land of "Adaptive Learning"
"The EPC has welcomed the news of the consultation on neighbouring rights, viewing at as an important step towards the much need recognition of the role and value of the press "in a global digital and media environment."