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DSM Watch: EU Commission announces first concrete legislative proposals – but when are they coming?

Alastair Shaw

Alastair Shaw,

London

Lea Kaase

27 November 2015
In this post we preview the EU Commission's first concrete legislative proposals on reform of EU copyright under the DSM banner, and look further ahead to what the Commission has planned in this area for 2016.

Background

In May the announcement of the EU Commission's Digital Single Market (DSM) strategy received much attention.  Our DSM Watch team is a multi-jurisdiction, cross-practice group working together to keep you informed as the initiatives under the DSM strategy roll out.

For an overview of the DSM strategy take a look at our earlier blogs for the whole and each of its three "pillars" here, here and here.

As part of the first pillar "Better online access for consumers and businesses across Europe", the DSM strategy outlined the Commission's key areas for legislative action to create what it called "a modern, more European copyright framework", and to improve access to digital content.

Recent developments: two legislative proposals and one Communication of a long term vision on copyright

Since May, apart from consultations aimed at information gathering, the Commission has largely been silent as to its detailed thinking on copyright matters.  That changed in early November with the publication of a roadmap on the modernisation of EU copyright rules, setting out what we can expect in the coming months.

Roadmap *

The roadmap here confirms that two legislative proposals will be presented: one dealing with the portability of legally acquired online content, and the other to implement the Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled.   In the roadmap the timing for these concrete proposals is presented as December 2015/early 2016, but at a copyright conference in London in late October we heard Member of Cabinet for the Digital Economy, Ana Herold, say that the Commission was hopeful that these would be published at around the same time as a Communication (i.e. formal policy document), and by the end of 2015.

Communication  

The roadmap says this Communication will be adopted in December and that it will outline legislative and non-legislative actions in the area of copyright, addressing in particular: territoriality of copyright, the definition of rights and exceptions relevant for the distribution and access to copyright works in the DSM, issues related to the functioning of the copyright marketplace and effective enforcement - all themes which May's DSM strategy paper touched on to a greater or lesser extent.

Leaked draft

Also in early November a leaked draft Communication covering in more detail the areas set out in the roadmap was published on inteIlectual property blog The IPKat (copy draft here).  DSM Watch's overview of the leaked draft Communication is below.  We haven’t covered it extensively because the details in the draft could well change by the time the Communication is formally adopted.  However, it seems unlikely that the main policy areas outlined below will shift substantially.

Commissioner's blog

The roadmap was followed up last week with a blog post here by Commission Vice-President for the Single Digital Market, Andrus Ansip, largely confirming in more general terms what the roadmap had already set out.   As to timing, he said: "I sincerely hope that the timing does not slip for any of our initiatives. We cannot afford major delays or any dilution of our ambition. The digital economy will not stop and wait." and in a speech this Wednesday at the University of Strasbourg Mr Ansip said that "We intend to present our reform plans in a strategy paper in December."

That all sounds like a signal from the top that the legislative proposals and broader Communication will arrive as scheduled; we shall see.  But whenever these initiatives are unveiled in full, DSM Watch will be back with analysis and comment.

More on the leaked draft Communication

The leaked draft document is entitled "Towards a modern, more European copyright framework" and contains several objectives, some specific, some vague. According to the leaked draft, the objectives are short and long term, but they look more like short, medium and long term goals:

Short term: The draft provides more details on the two legislative proposals noted above.

Medium term: After the first legislative proposals at the end of this year, the draft states that several topics will be handled in spring 2016. The focus will be on cross border distribution of television and radio programs online (via an extension of scope of the cable and satellite directive), on the implementation of an exception for text and data mining for scientific research purpose and the clarification of existing exceptions such as the freedom of panorama. Besides these specific goals, the Commission will be reflecting the new forms of market players in the online world and whether the definitions of a "communication to the public" and "making available" are still appropriate. The Commission also plans to try to reach an agreement with concerned parties as to a "follow-the-money" approach to combat piracy by spring 2016, with an initiative to amend the legal framework for the enforcement of IP rights following in the autumn.

Long term:  The leaked document reveals the long term vision of the Commission for the European market as a place where "authors and performers, the creative industries, users and all those concerned by copyright are subject to the very same rules, irrespective of where they are in the EU". The draft acknowledges that full harmonization of EU copyright would call for significant changes such as a single copyright title.

* Roadmaps - This is how the EU Commission describes them:

Roadmaps give a first description of planned Commission initiatives. They describe the problem that the initiative aims to address and possible policy options. They also provide an overview of the different planned stages in the development of the initiative, including consultation of stakeholders and impact assessment work. If an impact assessment will not be carried out, the Roadmap explains why.

Roadmaps allow stakeholders to be informed about the Commission's work and to feed in comments at an early stage. They also allow them to plan and organise their participation in the public consultation.

Roadmaps are required for Commission initiatives that may have significant direct economic, social or environmental impacts, covering:

  • legislative proposals

  • non-legislative initiatives (white papers, action plans, financial programmes, negotiating guidelines for international agreements)

  • implementing measures and delegated acts

Initiatives that are not expected to have significant direct impacts do not require a roadmap or an impact assessment

Alastair Shaw

Alastair Shaw,

London

Lea Kaase

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