Briefing

Information Matters: Creaking Copyright Law

Posted by: Peter Wienand and Emily Arnold | Date posted : 17/07/2015

Copyright holders, take note: the legal regime that protects your rights in Europe may change drastically. Content producers, aggregators and distributors alike are waking up to the EU Commission's plans to overhaul copyright law across the EU.  The Commission will put forward its legislative proposals to update copyright law by the end of 2015 – and has signalled the kinds of changes they want to see in its Digital Single Market Strategy, published last month.

In the Digital Single Market Strategy, the EU Commission sets out what it sees as the key barriers to digital growth in the EU.  Two of the main causes for complaint involve current copyright law.

First, the Commission is unhappy with the fact that copyright is protected in different ways in different EU countries.  At the moment, every EU state has legislation to protect copyright holders' rights and make sure content is not copied or distributed without the copyright owner's permission.  However, within the broad scope of the EU Directive on copyright (Directive 2001/29/EC), it is up to each state to exercise discretion and set its own exceptions to copyright infringement.

Take private copying for example. The UK recently tried to introduce an exception under s28B of the Copyright Designs and Patents Act 1988 to allow private copying.  This exception is supposed to give users the right to copy content onto different devices they own, like converting a song bought on CD into a digital format, for personal use.  The music business successfully judicially reviewed this exception in the High Court ruling BASCA and ors v Secretary of State for Business Innovation and Skills, issued last month (since when the Secretary of State has accepted that the Regulations be quashed to allow time for reflection). In the ruling, Mr Justice Green pointed out that different EU states approach private copying differently. 21 of the 28 EU Member States implement a similar private copying exception, but the exception is coupled with levies and schemes to compensate copyright owners for their financial loss.  It is this kind of different implementation of copyright law across different EU states which the Commission believes is holding Europe's digital economy back.

Second, the Commission complains that content providers are using copyright law to restrict users' access to content in different countries - so-called 'geo-blocking'. According to the Commission, less than 4% of video on-demand content is available cross-border in the EU.  Users who watch a series or buy a video game in the UK may well discover they cannot carry on watching the series or playing the game when they go abroad. This is because the content creators will have sold exclusive territorial rights to different distributors, broadcasters, etc – the distributor/broadcaster who is allowed to stream the video in the UK will probably not have equivalent rights to stream the video in other EU countries.  The Commission's contention is that travellers will feel frustrated when they can't access services such as Netflix abroad - it is only available in some EU countries - or watch BBC iPlayer once they cross the Channel.

For the EU, which prides itself on the Single Market, this kind of geo-blocking is seen as a serious barrier to economic and digital growth. The Commission wants digital media content available in one EU country to be accessible across the EU. However, European MEPs, briefed by the industry, have warned the Commission to do away with copyright protections at their peril, warning that exclusive territorial rights are important for film, TV and radio businesses to raise the revenue they need to produce media content in the first place.

The Commission has committed put forward proposals to modernise EU copyright law by the end of 2015. That's why they have set out their stall so strongly in the EU Digital Single Market Strategy document.  It looks like the EU Commission's proposed solutions will be radical. The Commission wants to minimise businesses' rights to geo-block content online; hopes to harmonise copyright law and reduce countries' abilities to create national exceptions - even considering (whisper it quietly) the possibility of a single EU-wide copyright title.

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If you require further information on anything covered in this briefing please contact Peter Wienand (peter.wienand@farrer.co.uk; 020 3375 7355), Emily Arnold (emily.arnold @farrer.co.uk; 020 3375 7601) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Intellectual Property page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2015