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Vanessa Bouchara
Driven by technological and scientific innovation, our modern society will not be able to develop and sustain itself without effective respect for intellectual property rights.
Announced in a European Commission communication dated December 9, 2015, entitled “Towards a modern and more European framework for copyright”, the “Copyright Package” was presented to the general public on September 14, 2016.
Subsequently, Directive (EU) 2019/790 (Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights) was adopted. neighbouring rights in the digital single market ) and Directive (EU) 2019/789 (Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and neighbouring rights (e.g., applicable to certain on-line transmissions of broadcasting organizations and retransmissions of television and radio programs) were adopted by the European Parliament and the Council on April 17, 2019, partly taking up the proposals announced in 2016.
In order to fully grasp the different stakes of the Copyright Package, we offer you a succinct and critical presentation of its content and legislative evolutions.
On September 14, 2016, the European Parliament and the Council unveiled the composition of the “Copyright Package”.
The latter was then composed of four proposals for standards: two directives (No. 2017/1564 and No. 2016/0280) accompanied by two regulations (No. 2017/1563 and No. 2016/0284).
Among these four texts, Directive n°2017/1564 and Regulation n°2017/1563 have already been adopted without much public debate in view of their purpose.
However, many debates took place on the provisions of Directive No. 2016/0280 and Regulation No. 2016/0284, and after more than two and a half years, they have finally been validated and adopted by the European Parliament.
Increased access to culture for the visually impaired
Directive No. 2017/1564, which must be transposed into national law by October 11, 2018, concerns “certain permitted uses of certain works and other subject matter protected by copyright and the neighbouring rights for the benefit of the blind, visually impaired and other print-disabled persons and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society”.
The Directive was partially transposed into national law by Law No. 2018-771 of September 5, 2018 on the freedom to choose one’s professional future
The Regulation No. 2017/1563, meanwhile, is applicable since October 12, 2018, and “on the cross-border exchange, between the Union and third countries, of copies in accessible format” of certain works for the benefit of the blind and visually impaired.
Directive No. 2017/1564 and Regulation No. 2017/1563, organize an exception to copyright for the benefit of the blind, visually impaired and people with other print reading difficulties.
In practice, copies of works or other objects presented in a special form allowing the beneficiaries to have access to them, made in a Member State, will no longer be subject to the authorization of the owner of the copyright or related rights in order to be disseminated and accessible throughout the Union.
Both texts were adopted unanimously, which is understandable.
State opposition to the expansion of broadcasters’ online transmission
The proposed Regulation No. 2016/0284 “laying down rules on the exercise of copyright and related rights neighbouring rights applicable to certain online broadcasts of broadcasting organizations and retransmissions of television and radio programs” was intended to promote the cross-border provision of online services ancillary to broadcasts.
The proposed Regulation also provided for the possibility of direct or on-demand broadcasting of TV and radio programs from other Member States.
The main idea is the realization of an internal broadcasting market without internal borders in the more general context of the digital single market.
However, the French authorities are opposed to this question in principle, considering that the effects of such a regulation would indeed be a brake on the growth of European VOD, while at the same time players from outside Europe are entering the market every day and creating an obvious breach of equality.
Nevertheless, the advantage of this measure would be a broadening of our television and audiovisual horizons at lower cost within the EU.
The regulation also extended the use of the country-of-origin principle to govern satellite broadcasting, as set out in Directive 93/83/EEC of 27 September 1993 “on the coordination of certain rules concerning copyright and related rights”. neighbouring rights of copyright applicable to satellite broadcasting and cable retransmission”.
Such a measure could, in the long run, weaken the territoriality of copyright since the regulation considers it a legal fiction that catch-up TV and direct online retransmission services are supposed to take place only in the country of establishment of the broadcaster concerning the exercise of the rights. Thus, the latter would not, as a matter of principle, have to ask the copyright holders for a specific authorization to exploit a particular area.
The French authorities’ reservation on this point seems fully justified in view of the issues at stake. It would in fact accentuate the imbalance in the relationship between copyright holders and broadcasting professionals, a relationship that is already unbalanced in essence.
Despite the reservation of the French authorities on the subject, Directive n°2019/789 of April 17, 2019, replacing the proposed Regulation n°2016/0284, has indeed enshrined the country of origin principle, by providing, in Article 3, that the acts of communication or making available through the cross-border provision of an ancillary online service are ” deemed to take place only in the Member State in which the broadcasting organization has its principal place of business.
Section 3 also provides that the above provisions are mandatory.
Only radio and television programs (i.e. news, information and productions owned by the organization) are affected by this provision.
An (overly) ambitious directive to adapt copyright to the digital single market
As for the proposed Directive No. 2016/0280 “on copyright in the digital single market”, it had not gone unnoticed by digital actors.
It intended to implement eight main measures.
First, among the measures proposed by the directive, three constitute exceptions to the applicability of copyright and complete the optional exceptions of the European Directive n°2001/29/EC: education, text and data mining for scientific research and preservation of cultural heritage and finally the reproduction of works made for non-commercial purposes of conservation by public libraries, museums or archives.
These new exceptions were in the general interest and were therefore legitimate, since the legal security surrounding cross-border uses is not, to date, guaranteed by any European legal text allowing for the harmonization of any national legislation in this area. On this point, the directive is therefore welcomed without particular controversy.
The second objective of the Directive was to improve licensing practices for works and to broaden access to copyrighted content online. This objective was also only marginally objectionable in view of its goal of enabling greater choice of enhanced, cross-border online content.
More concretely, this concerns an increase in the scope for cultural heritage management institutions to use, for non-commercial purposes, works that are not accessible to the public, but are nevertheless permanently in their collections, through the usual commercial channels.
Unsurprisingly, this proposal was enshrined in Directive No. 2019/790, a new directive that replaced the proposed Directive No. 2016/0280, in Article 8 by providing for the possibility for cultural heritage institutions to obtain licenses to disseminate commercially unavailable works in their permanent collections to the public.
Article 6 of the Directive also provides for the possibility for cultural heritage institutions to make copies of works or any object in their permanent collections, without the authorization of the right holders.
To meet this second objective, the proposed Directive also provided for greater availability of audiovisual works, still under license, on video-on-demand platforms through a special mechanism of impartial negotiation of licenses with the rights holder.
On this point, the Directive n°2019/790 has also retained this proposal by providing in article 13, in case of difficulties encountered during the licensing of rights for the making available of audiovisual works on video-on-demand services, the possibility to have recourse to the assistance of an impartial body or mediators.
It should also be noted that Member States have until June 7, 2021 to notify the Commission of the name of the chosen ombudsman(s).
The last objective of the proposed Directive, ambitious in form but highly questionable in substance, was to improve the functioning of the copyright market. The idea being that of a rebalancing of the balance in favor of the creators of works but also, and more generally, of the sector of the creation and the press.
Rebalancing the balance of these different actors can only be done at the expense of the consumer and therefore, more generally, of the latter’s access to culture and information.
The proposed Directive intends to create a neighbouring right for publishers of press publications for the reproduction and communication to the public of their publications in the context of digital uses.
This right was intended to last for twenty years from the time the article was published online, which is an eternity in the digital world. Press publishers will be able to grant licenses, in principle expensive, for the online use of their publications.
It was clearly a desire to enshrine at the Union level the “Lex Google” adopted by Spain on October 28, 2014 and obliging bloggers as well as publishers of press articles to charge information aggregators.
As a reminder, this law led to the closure of the Google News platform, then the main aggregator of press articles and a key source of information for Spanish Internet users who could cross-reference different information on a single platform and thus use their critical thinking.
It is obvious that such a measure is taken to protect the press sector, but at what cost? That of not being able to freely disseminate information in the digital age and the information society? The fight is fair but the weapons are not adapted.
Despite this, the neighboring right of publishers and news agencies was finally well enshrined in Article 15 of Directive No. 2019-790 and was partially transposed into French law by Law No. 2019-775 of July 24, 2019.
Article L.211-3 of the Intellectual Property Code now provides that press publishers and press agencies benefit from related rights.
The duration of the economic rights of publishers and press agencies has finally been fixed at two years as from January 1st of the calendar year following that of the first publication according to article L.211-4 of the same Code.
A new article L.218-2 of the Intellectual Property Code has been introduced providing that “The authorization of the press publisher or news agency is required prior to any reproduction or communication to the public in whole or in part of its press publications in digital form by an online public communication service.”
However, it should be noted that this provision is intended to apply only to press publishers or press agencies having their registered office or principal place of business in one of the Member States of the European Union and for press publications published after June 6, 2019.
The same criticism applied to the proposed obligation for platforms to automatically filter online content using algorithms to identify and block works considered to be protected by copyright.
Once again, the idea was noble but it went against the e-commerce Directive n°2000/31/CE which set a lighter liability regime for Internet access providers and hosts.
With this new measure, we would be heading towards a private police of companies that would intervene as soon as contents are put online and could potentially abuse its powers by censoring in a disproportionate way the contents that would not suit it, to the detriment of the free access to culture and information.
Let’s remember that access to culture and information are fundamental rights by extension, providing the critical tools necessary for the free will of any individual.
A system that is just as protective of authors’ rights as Directive n°2016/0280 must indeed be adopted as a matter of urgency.
However, this must not be done at the expense of the consumer who is legally deprived of this formidable tool of access to culture and information that is the digital tool.
The Directive n°2019/790 will not have finally enshrined the obligation of filtering incumbent on online platforms.
However, a new liability regime for platforms has been put in place.
Indeed, Article 17 of Directive 2019/790 provides that any sharing of online content that would give access to a copyrighted work constitutes an act of communication to the public.
Therefore, it is now incumbent upon online platforms such as YouTube, Amazon Prime Video or Netflix to obtain authorization from copyright holders before any act of communication to the public, through a licensing agreement for example.
Thus, platforms can be held liable if unauthorized content is posted on their platform.
As soon as they become aware of an unauthorized broadcast, platforms will have to act “promptly” and provide “their best efforts” to stop it.
If they fail to do so, they may be held liable.
In French law, Article 17 was transposed by the ordinance of May 12, 2021 (Ordinance n°2021-580, May 12, 2021, JO May 13, 2021), the new provisions of which will come into force on June 7, 2021.
Whether one accepts it or not, the “Copyright Package” makes it possible to establish a certain balance between authors and the major digital players. The search for such a balance is urgent in the face of the growing importance of digital players.
The Directives (EU) 2019/789 and 2019/790 adopted on April 17, 2019 thus make it possible to bring novelties in adequacy with the digital market while harmonizing the European law with regard to copyright and related rights.
In France, the two Directives have only been partially transposed, so it will be necessary to wait for their effective transposition in order to appreciate all the consequences on the French market.
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