It’ll be all copyright on the night

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

The copyright committee of the European Communities Trade Mark Association (ECTA) was formed in response to the work at the EU level to modernise the union’s approach to copyright in the internet age—one that is typified by increasing demand for content that crosses borders, but also the need for greater protection for traditional authors and publishers whose work is indexed and shared without appropriate compensation.

The stakeholders in the so-called Digital Single Market initiative are many, the interests myriad, and right in the middle are those that wish to evaluate and inform rather than debate, educate instead of argue, like ECTA’s copyright committee.

Last year, following the European Commission’s first solid Digital Single Market proposals in December 2015, came the reform proposals to copyright law itself, and a flurry of argument ensued, from consumer groups to rights owner organisations, all throwing their weight behind one aspect or another, without anyone really knowing what an EU digital single market could look like at the end of it.

Dr Christian Freudenberg, chair of ECTA’s copyright committee, and partner at Schomerus & Partner in Hamburg, says he and his colleagues have preferred to focus on reviewing and evaluating specific legal aspects of the proposals and how they might be improved, rather than be caught up in the political debate.

He says: “It is the task of the copyright committee to actually focus on the various aspects of European copyright reform and try to identify those issues that need clarification, modification or adjustment. At the same time, we will consider the impact of copyright reform on the national laws of EU member states, to see and understand which states will have to make substantial changes in their national copyright laws.”

This work has led to the preparation and completion of two position papers, which have been approved by the ECTA council and management committee and were submitted to the European Commission in January of this year. Those papers, which focused on the proposed reform of the Cable and Satellite Directive and cross-border portability, are available to read in full on ECTA’s website.

Of the position paper on the proposed reform of the Cable and Satellite Directive, Freudenberg says that ECTA would prefer further consultation. He explains: “ECTA has called upon the European Commission to consider a second round of public consultations on the possible extension of the principles of the directive in the near future and before any legislative proposals are put forth, so that the rights and legitimate interests of all stakeholders, ie, broadcasters, service providers, rights holders and consumers, could be fully taken into account and a balanced solution is achieved.”

“With regard to the draft regulation on ensuring cross-border portability of online content services in the EU, ECTA has recommended to clarify various definitions and pointed out that the proposal has to be modified with regard to personal data protection issues.”

The cross-border portability regulation, having been introduced first back in 2015, is much further along the legislative track in the EU than its sister reforms, such as the proposed new copyright directive. Both have attracted substantial support and criticism, but it is the cross-border portability regulation that could become law as early as 2018, following the European Council’s adoption of the new regulation, to allow EU citizens who pay for online services in their home country to access those services temporarily in other member states, in early June.

In particular, the regulation is still unclear in its definition of “temporarily present in a member state” and only several scenarios, such as leisure, travel, business trips or learning mobility, have been outlined as suitable under the new regulation. In its position paper, ECTA called for further clarification of what is meant by “temporarily present” and “residence”.

“According to the proposal, ‘temporarily present in a member state’ means the presence of a subscriber in a member state other than the member state of residence for a limited period of time. This definition does not contain any clear criteria for the evaluation which period of time is covered,” the position paper explained. Considering the impact of less clarification on both content providers and subscribers, the position paper continued: “Content providers are only obliged to provide access to the subscribers as long as they are ‘temporarily present’ in another member state. If subscribers are present in another member state for more than a limited period of time, they cannot benefit from the new rights of the proposal anymore.”

“In order to avoid copyright infringement and/or interference with other licence rights, content providers might be obliged to prevent such subscribers from accessing content, which might even require detailed monitoring of the country of their location which usually is done through the IP addresses of their internet access. As the proposal currently does not provide for any guidance for content providers on how to balance these conflicting rights, it is left to their discretion. Content providers might either face serious legal or enormous bureaucratic issues and costs.”

The data protection issues that Freudenberg alluded to are equally unclear. “The EU and its member states are dedicated to maintaining a high level of protection of personal data. Therefore, the proposal provides that the processing of personal data under the proposal, in particular for purposes of verification of the subscribers’ residence, shall be carried out in compliance with EU data protection rules.”

Under the proposed cross-border portability regulation, only the provider of an online content service “provided against payment of money” will make use of effective means to verify the member state of residence of its subscribers. This, according to the position paper, presents a problem for content providers.

“The proposal does not oblige content providers to monitor the current location of their subscribers. However, this seems to be inevitable as the rights under the proposal only apply to EU member states.”

“As content providers usually are bound by copyrights and licence agreements, they have to know if their subscribers are trying to access content from other member states (where access has to be granted according to the proposal) or third countries (where the proposal does not apply).”

“Content providers might even have to monitor whether subscribers are more than ‘temporarily’ present in another member state and prevent them from accessing content if they cannot rely on the rights under the proposal anymore. From a merely technical perspective, monitoring the location of subscribers through their IP addresses is no problem. However, processing of such personal data has to be proportional and serve a legitimate purpose.”

The challenges going forward are many, not least when a trademark and design association has to extend its expertise to copyright too.

Still, Freudenberg says the copyright committee will carry on with its work: “The copyright committee will try to evaluate and comment on the European Commission’s legislative proposals and to submit further position papers to stay engaged in the ongoing legislative proceedings.”

The copyright committee has had a break at the national level thanks to the Digital Single Market programme. Freudenberg says: “As far as we can see, most countries are primarily following the discussion and waiting for the results of the European Commission’s reform activities instead of starting new national legislative activities.”

Finally, has Brexit threatened the EU’s work on copyright reform in any way? Freudenberg thinks not. He says: “Due to the low harmonisation level of European copyright and the fact that there is no kind of EU copyright office taking care of registration and administration matters, the Brexit effect will not complicate our work in copyright.”

“But Brexit might have an effect on Court of Justice of the EU (CJEU) decisions,” Freudenberg says, “as some of the most important copyright cases have been submitted by the UK High Court,” meaning ECTA’s copyright committee will have to keep an eye on the health of CJEU case law in the future, without the useful direct participation of UK courts.
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