The European Audiovisual Observatory publishes major new study – free to download
Last September, Andrus Ansip, Vice-President for the Digital Single Market, talked about “transforming Europe's copyright rules in light of a new digital reality.” He outlined the multiple challenges concerning digital content thus: “Europe's creative content should not be locked-up, but it should also be highly protected, in particular to improve the remuneration possibilities for our creators”. The European Commission presented its new Copyright Package in September 2016 and the texts are currently being examined by the European Parliament and Council of Ministers.
To guide us through this complex process, the European Audiovisual Observatory, part of the Council of Europe in Strasbourg, has published its latest IRIS Plus report: Exceptions and limitations to copyright, free to download here. This is a truly invaluable roadmap through the often complex landscape of exceptions and limitations to copyright in Europe.
After providing useful background on the origins of copyright in chapter one, the report then outlines the context of the international and European legal framework in chapter two. Exceptions and limitations to copyright at international level as well as at EU level are explored: the report outlines, for example, the exceptions allowed under the InfoSoc Directive for the benefit of libraries and educational establishments, for teaching and research purposes, for public lending or for private copying.
Chapter three zooms in on national legal frameworks. Given that exceptions to copyright are to a certain extent left to the discretion and judgement of national legislators, a patchwork of different rules is currently spread over Europe. Indeed, the European Union has defined the different types of copyright exceptions that are allowed under EU law, such as transient copies (the only mandatory exception in the list), private copying, reproduction for the benefit of cultural heritage institutions or exceptions related to the whole field of reporting (current events, quotations for criticism or review, or parodies). This chapter provides a concrete overview of which of those exceptions are applied in the Member States and how they are implemented.
Chapter four delves into the field of self and co-regulation concerning copyright. Individual organisations or interest groups concerned by copyright have indeed undertaken their own initiatives to develop appropriate tools and solutions to facilitate access to copyright works under certain specific circumstances, such as for people with print disabilities, for audiovisual heritage institutions in relation to the digitisation and access to our film heritage or for scientific and research purposes through text and data mining.
As always, the most pertinent recent case law in the copyright field is examined in chapter five. The role of the Court of Justice of the European Union (CJEU) has been fundamental in clarifying the scope of exceptions and limitations to copyright. This is particularly true for the private copying exception, whose scope and interpretation have been subject to a long list of judgments by the Court in recent years. Chapter five lists the most recent ones in a table of jurisprudence with references and provides an in-depth analysis of the most emblematic ones.
Chapter six details the state of play regarding current EU copyright exceptions in the bigger picture of the Digital Single Market initiative launched by the European Commission in 2015. The final proposed “Copyright Package” was presented by the European Commission in 2016 and it includes three new mandatory exceptions. The first of these allows the use of copyrighted material for the purpose of education, provided that the use is non-commercial, takes place through a secure electronic network and gives an indication of the source. The second exception allows reproduction in the interest of the preservation of cultural heritage (by, for example, accessible libraries, museums or archives). Text and data mining represent the third exception, so that the EU’s competitiveness and scientific leadership may be bolstered by the right to copy and analyse data sets and texts normally subject to copyright protection under certain conditions. A fourth exception was added, in implementation of the Marrakesh Treaty, which allows the creation of accessible format copies for people with print disabilities.
The report concludes that the proposed Copyright directive and the Marrakesh exception are currently being analysed by the European Parliament and the European Council. As yet no final date of adoption has been announced.