# EUR-Lex - 52012DC0789 - EN

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# 52012DC0789

**COMMUNICATION FROM THE COMMISSION On content in the Digital Single Market /* COM/2012/0789 final */**

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COMMUNICATION

On
content in the Digital Single Market

1.
Introduction

The digital
economy has been a major driver of growth in the past two decades, and is
expected to grow seven times faster than overall EU GDP in coming years. Online
there are new ways of providing, creating and distributing content, and new
ways to generate value. The emergence of new business models capitalising on
the potential of the internet to deliver content represents a challenge and an
opportunity for the creative industries, authors and artists as well as for the
other actors in the digital economy. Against this backdrop, one of the Commission's
objectives is to ensure that copyright and copyright-related practices, such as
licensing, stay fit for purpose in this new digital context.

In 2010, in
its Digital Agenda for Europe,[1]
the Commission endeavoured to open up access to content as part of its strategy
to achieve a vibrant Digital Single Market and identified a number of actions
in the field of copyright. In 2011, in its Intellectual
Property Strategy "A Single Market for Intellectual Property Rights"[2], the
Commission recognised the strategic importance of copyright for the development
of the Digital Single Market. The Strategy sought to develop solutions targeted
and designed to address specific obstacles with the most appropriate tools
available, be they commercial or contractual solutions, technology-based
solutions, or legislative intervention.

Against this
background, the Commission has already taken a number of actions, including new
legislation on orphan works and a pending legislative proposal on collective
management; a contractually-based solution in the form of the Memoranda of Understanding
on out of print books, and access to works by the Visually Impaired; and support
for the development of technological solutions. The Commission has also published
a call under the CIP-ICT Policy Support Programme 2012, on ' European Rights
Information Management'.

In the
Compact for Growth and Jobs in June 2012 the Heads of State or Government underlined,
among other measures needed to achieve a well-functioning Digital Single Market
by 2015, the importance of modernising Europe's copyright regime and
facilitating licensing, while ensuring a high level of protection of
intellectual property rights and taking into account cultural diversity.

Whilst good
progress has been made in delivering the copyright-related actions identified
in the Digital Agenda and the Intellectual Property Strategy, there remains
work to be done to ensure an effective single market in the area of copyright.

The
Commission will therefore work on two parallel tracks of action.  On the one
hand, it will complete its on-going effort to review and to modernise the EU
copyright legislative framework.

In parallel,
the Commission will set out to address a number of issues on which rapid
progress is necessary and possible. Thus, a structured stakeholder dialogue
will be launched by the Commission, with the assigned objective of delivering by
the end of 2013 practical industry-led solutions to these issues, without
prejudice to further public policy action, including legislative reform, as
appropriate. Under the name of "Licensing Europe", this process will seek
to tap the potential and explore the possible limits of innovative licensing
and technological solutions in making EU copyright law and practice fit for the
digital age.

2.
Structured
stakeholder dialogue

"Licensing Europe" will comprise four
parallel work strands, tasked with delivering effective market-led solutions,
without prejudging the possible need for public policy action. For this reason,
the participants will be hands-on representatives of rights holders, licensing bodies,
commercial and non-commercial users of protected content, as well as internet end-users.
The process will be launched at an initial plenary meeting beginning 2013, and
working groups will be established to take forward work and report back to the
plenary at mid-term (June) and finally in the fourth quarter of 2013. The
process will cover the issues as set out below. The specific detail for the
work on each them should be considered indicative.

(i)
Cross-border access and the portability of services

The Commission's objective is to foster
cross-border on-line access and "portability" across borders of content.
To benefit from new developments, like cloud-computing, cross-border legal
access to cloud-stored content and services should also be facilitated. Service
providers interested in providing their services to consumers across the EU
need to ensure that they have secured all the necessary rights in the Member State in which they wish to provide services. Both multi-territory and single
territory licensing is possible, depending on the sector, the service provider
and the rights holder. However, distribution of content is often limited to one
or a few Member States (e.g. using geo-blocking), with service providers
(online platforms) or rights holders electing to impose cross-border sales
restrictions.

Ø This work strand
should identify the main categories of restrictions on cross-border access and
portability by sector (taking into account some aspects of the consultation
responses to the 2011 Green Paper on the online distribution of audiovisual
works in the EU) and the main reasons behind these restrictions. On this basis
it should take stock of current industry initiatives and deliver practical
solutions to promote multi-territory access.

(ii)
User-generated content and licensing for small-scale users of protected
material

The Commission's objective is to foster
transparency and ensure that end-users have greater clarity on legitimate and
non-legitimate uses of protected material, and easier access to legitimate
solutions. Content generated by users themselves is often covered by some form of
licensing by rights holders, in partnership with certain platforms. However the
scale and coverage of such licences is not transparent to the end user. Furthermore,
such arrangements create rights and obligations for the contractual partners,
but do not necessarily provide legal certainty to the end-users. In parallel,
small-scale users of content, such as small companies who wish to use some
images or music in their websites, struggle to identify how to acquire licences
for low value uses of protected content.

Ø This work strand
should identify the extent to which user-generated content is licensed to
relevant platforms, and identify how to ensure that end-users are informed about
what is legal and illicit use on the internet.

Ø It should seek
to ensure that end users benefit from easier access to, and greater clarity on what
are the legitimate and non legitimate uses of protected material. To that
effect, it should identify the range and extent of "one-click"
licensing initiatives in the EU, deliver solutions to extend the development
and interconnection of such initiatives and explore the appropriateness of
licensing or appropriate terms – e.g. the possibility of free licenses.

(iii) Audiovisual
sector and cultural heritage institutions

The
Commission's objective is to facilitate the deposit and online accessibility of
films in the EU both for commercial purposes and non-commercial cultural and
educational uses. It remains difficult for online service providers to develop
catalogues of European films for online availability, particularly those which
are "out-of-distribution" i.e. works whose rights holders are
unwilling or unable to exploit on an individual basis: it may be difficult to
identify the existence of films, or the rights may be complex and time-consuming
to clear. Film Heritage Institutions also consider that the current situation
in some Member States does not allow them to fulfil their public interest
mission.

Ø
This
work strand should identify successful collaborative solutions to improve the discoverability
and the making available online of audiovisual works, particularly those which
are out of distribution on a voluntary basis. It should deliver concrete
solutions to spread best practice approaches throughout the EU both for
commercial and non-commercial uses.

Ø
Recommendations
should be made on how to ensure that Member States provide adequate scope in a
practical manner for cultural heritage institutions to 'reproduce' or 'format
shift' archived material in order to digitise for preservation purposes.

(iv) Text and
data mining

The Commission's objective is to promote the
efficient use of text and data mining (TDM) for scientific research purposes.
TDM currently requires contractual agreements between users (e.g. typically
research institutions) and rights holders (e.g. publishers of scientific
journals) to establish the modalities for technical access to the relevant data
sets.

Ø
This
work strand should identify the scale of demand for TDM access at EU level for
text mining of scientific publications and underlying data for research
purposes, and appropriate means of meeting this demand. It should explore the
potential and possible limits of standard licensing models, as well as assess
the appropriateness and feasibility of technology platforms to facilitate TDM
access.

In addition to these areas, during 2012 the
issue of private copying levies has been the subject of an industry
mediation process, fostered by the Commission and led by former Commissioner
António Vitorino. Mr. Vitorino is expected to deliver a report on this issue at
the beginning of next year, including a number of recommendations. On this
basis the Commission will draw conclusions as to appropriate follow-up actions for
the specific recommendations, including the further involvement of stakeholders
to contribute to the finding of future-proof and internal market friendly
solutions.

3.
Review
of the copyright framework

In parallel the Commission will complete its on-going
review of the EU copyright framework, based on market studies and impact
assessment and legal drafting work, with a view to a decision in 2014 whether
to table the resulting legislative reform proposals. The following
elements will be addressed: territoriality in the Internal Market;
harmonisation, limitations and exceptions to copyright in the digital age;
fragmentation of the EU copyright market; and how to improve the effectiveness
and efficiency of enforcement while underpinning its legitimacy in the wider
context of copyright reform.

4.
Conclusion

Over the next
two years the Commission will continue to work for a modern copyright framework
that remains fit for purpose and seeks to foster innovative market practices in
order to guarantee effective recognition and remuneration of rights holders; to
provide sustainable incentives for creativity, cultural diversity and
innovation; to increase the choice of and open up access to legal offers by end
users; to allow new business models to emerge; and to more effectively contribute
to combating illegal offers and piracy.

The
Commission is confident that the stakeholder dialogue can work as an incubator
for innovative win–win solutions for all stakeholders. Such solutions are vital
for driving forward the Digital Single Market and EU cultural policy and
complement work on-going in the implementation of the Digital Agenda, the
modernisation of copyright in the single market, or the successful
implementation of the MEDIA and Culture programmes.

[1] COM
(2010) 245 final/2

[2] COM(2011)
 287
final