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DSM Watch: Towards a modern European copyright framework (Part 3): copyright exceptions

16 February 2016
Our third post in a series of five looks at the areas the European Commission has targeted for change in relation to copyright exceptions.


The Commission's Digital Single Market (DSM) strategy – presented in May 2015 – contains 16 initiatives in a variety of fields such as telecommunication, consumer rights and Big Data, each of which is intended to bring us one step closer to the European digital single market. 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.

One of the 16 initiatives focuses on copyright reform. On 9th December 2015, the European Commission presented its action plan "Towards a modern, more European copyright framework", a "political preview" which the Commission has said will be translated into legislative proposals and policy initiatives in 2016.  Additionally, the Commission published a draft Regulation on cross-border portability of online content services.

We have already posted on the topic of "Widening access to content across the EU" (Part 1), as well as the draft Regulation on cross-border portability of content (Part 2).  Parts 4 and 5, on "Creating a fairer marketplace" and "Fighting Piracy" will follow soon. Meantime, this blog summarises the key proposals within the Commission's action plan under "Exceptions to copyright rules for an innovative and inclusive society".

Exceptions to copyright rules for an innovative and inclusive society

Art. 5 of the directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive) lists several copyright exceptions such as the exception on private copying. However, most of these exceptions are not mandatory and it is up to each Member State to decide whether to implement them. In the light of today's technological realities, more and more exceptions have effect beyond the borders of a given Member State. Therefore, the Commission comes to the conclusion that a reassessment – in particular for those exceptions that are related to education, research and knowledge – is necessary.

This is particularly true with respect to the following subjects:

  • The exception addressed first will be to implement the WIPO Marrakesh Treaty, which provides an exception to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled.
  • Text and Data Mining for public interest research organizations for scientific research purposes, but limited to content they have lawful access to.
  • Because of the lack of clarity, the exception for illustration for teaching.
  • Cultural heritage institutions to have clear rules permitting preservation of works reflecting the use of digital technologies and the needs of both "born-digital" and digitized works.
  • Remote consultation of works in research and academic libraries for research and private studies.
  • Clarification of the Freedom of panorama taking account of new dissemination channels.
  • Reprography and private copying exceptions are also in play, in that the Commission has said it will be looking at how levies for these copyright exceptions can be distributed more efficiently to right holders.

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