Mind the Gap


As recent proposals for the Digital Single Market come to light, including the controversial link-tax, opinion is split on the effects they might have

“The creation of content is not a hobby. It is a profession,” Jean-Claude Juncker, president of the European Commission, said at his State of the Union Address on 14 September. But not everyone agrees.

Concerns regarding the EU’s recent copyright reform proposals have reached a head following their highly anticipated release, and many are echoing the trepidation that the reforms were subject to following the leaked proposals.

The most controversial of the proposals is a new reform that will provide publishers the rights already afforded to authors, performers, film and record producers for online use of their news publications. The proposal would also allow publishers to benefit from potential future restrictions to hyperlinking following GS Media v Sanoma.

Adam Rendle, senior associate in the IP and media team at Taylor Wessing, says: “Publishers and/or intermediaries may react to the grant of a new right by reducing the amount of accessible content and/or increasing the price of content.”

“In Spain, introduction of a similar law led to the closure of services and the relocation of businesses to countries and markets outside of the EU.”

But a group of five industry associations, including the European Newspaper Publisher’s Association and the European Media Management Association welcomed the proposals, asserting in a joint statement that the introduction of a publisher’s right at the EU level is a “necessary and historically important step in guaranteeing media pluralism as an essential basis for freedom of opinion and democracy in the digital world”.

“The commission’s proposal takes into account the unsatisfactory situation whereby the high-quality content produced by press publishers contributes to the success of many online platforms that do not make a significant contribution to the content, while publishers do not benefit from an appropriate share of the value produced.”

The new reforms also aim to change the role of intermediaries, such as social networks and user-driven content platforms, placing extra obligations on them for when users and third parties upload infringing content.

The commission previously ruled out amending ‘safe harbour’ defences that make up the majority of platforms protections and allow intermediaries to operate without license agreements for their platforms.

Mozilla, creator of the internet browser Firefox, recently released its own petition for EU reform requesting that the commission ensure any new legislation is “future proof”.

But Rendle suggests that this aspect of the reforms is a “valiant attempt to balance the competing interests, but leaves a substantial amount to be discussed between them in years to come”.

“Over time, all sides will be faced with shifting sands and a lack of clear direction from the directive.”

Following the decision, Mozilla released a statement and reaction to the proposals, describing them as “disheartening” and being “more of a regression than the reform we need to support European businesses and internet users”.

“The proposal falls far short on three aspects: it does not modernise EU copyright nor adapt it to the internet era; it introduces the failed and harmful [link tax]; and it would establish barriers to entry for startups, coders and creators.”

OpenMedia.org was very vocal when proposals were leaked, arguing that they “strike a blow at the very foundations of an open internet”.

It said: “If they are made law, the EU will fall far behind the rest of the world when it comes to digital innovation, the exact opposite of the intention behind the European Commission’s Digital Single Market plan.”

Since the official release of the reforms, OpenMedia has reacted with a petition, savethelink.org, in an effort to combat the proposals and show the European Commission its reluctance to accept these proposals. The petition already has over 118,000 signatures.

“The web without links is like a world without roads,” says a statement on the petition homepage. “Links are what empower us to access the greatest collection of human knowledge and experiences the world has ever seen with the click of a button.”

NordVPN, a VPN service provider, has publicly endorsed OpenMedia, with chief marketing officer Marty Kamden saying: “The internet was born with the idea to connect people and to freely share information. The new law threatens to stall the growth of innovation and to harm online businesses, which are the driving force of our modern digital economy.”

NordVPN says it will “support the initiatives of OpenMedia.org to hear the public opinion and to fight for reversal of various unfair laws”.

Not all commentary on the reforms is negative, though. Many of those who benefit from the link tax and other proposals have heralded the reforms as a step in the right direction, and some are asking for the commission to go further.

Industry groups have long campaigned for stricter rules on copyright, most notably with a high profile letter from over 1,000 musicians including Paul McCartney, Coldplay and Lady Gaga.

The International Confederation of Societies of Authors and Composers (CISAC) said: “Europe is waking up to the global community of creators calling for urgent action to secure a fairer digital market.”

“The proposal is a step in the right direction, but additional steps are required to ensure creators receive fair remuneration and to prevent abuse of the existing legal framework by online intermediaries. We are looking at the European Parliament and the member states for more significant action towards a better future for creators in the digital marketplace.”

The Authors’ Licensing and Collecting Society (ALCS) also welcomed the news, with deputy CEO Barbara Hayes stating: “Fairness and balance are the hallmarks of a progressive copyright system, and safeguarding the rights of authors to fair compensation is central to sustaining and developing creativity.”

“This new directive recognises this by enabling teachers and students to access learning materials on terms that will incentivise the creation of new works and establishes further measures to safeguard authors’ rights. It is a good start, but more needs to be done.”

The breadth of response to the reforms has been wide, and, as always, opinions differ between communities. But whether too strict a move or a mere first step, for all parties these reforms seem to have somewhat missed the mark.

Features
The latest features from IPPro The Internet
The Federation Against Copyright Theft is one of the longest running copyright protection organisations in the UK, but growing threats in the last year have called for a significant change in strategy. Kieron Sharp explains
Le Quang Vinh of Bross & Partners examines the substantive changes to criminal law in Vietnam that promise to rein in counterfeiting and piracy
Join Our Newsletter

Sign up today and never
miss the latest news or an issue again

Subscribe now
As EU copyright reform continues, publishers are insisting the press publisher’s right will be good for business and won’t harm consumers. Angela Mills Wade of the European Publishers Council explains
ECTA’s copyright committee was formed in response to the modernisation of the EU’s approach to copyright. Chair Dr Christian Freudenberg tells Mark Dugdale what this has meant in practice
ECTA has ramped up its efforts to ensure that IP rights are heard in Brexit negotiations. But this isn’t all the trademark association has been up to in the past year, as Ruta Olmane explains
William Dyer III and Bea Koempel-Thomas of Lee & Hayes examine TC Heartland v Kraft and the arguments put forward in support of each party
As Brexit negotiations begin, it is still unclear where trademarks fit in. But, with two years to get a good deal, the UK government needs to consider all aspects
Rights holders that want to protect their valuable intellectual property have to be willing to change
Country profiles
The latest country profiles from IPPro The Internet
While Indian fair use is not explicit, provisions exist for the fair dealing of copyright. Rohit Singh and Tina Canneth of Abu-Ghazeleh Intellectual Property delve deeper
An interpretation of the current events exception in Radosavljević is creative, say BDK Advokati's Bogdan Ivanišević and Marko Popović
IPPro Patents

Visit our sister site
for all the latest IP patents news and analysis

ippropatents.com
Yu-Li Tsai of Deep & Far examines how damages are calculated in patent infringement litigation
A recent amendment will make costly annulments a thing of the past. Gilberto Sanchez of SPECyF explains
New legislation in Turkey promises a swathe of trademark changes. Dr Cahit Suluk of Cahit Suluk Intellectual Property Law Firm explains
A trademark decision clarified ‘against the public order’ as an absolute ground for refusal. Sár and Partners – Danubia Patent & Law Office reports
Bogdan Ivanišević and Marko Popović of BDK Advokati review the recent squabble about copyright protection for ‘routinely created photos’
Alston & Bird recently expanded with a new office focusing on counselling Chinese companies on US intellectual property law. Yitai Hu explains what patent owners face when working across borders
Interviews
The latest interviews from IPPro The Internet