COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Towards a modern, more European copyright framework
Date: 2015-12-09
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: Internet, access to information, audiovisual industry, copyright, cross-frontier data flow, digital technology, electronic commerce, information storage and retrieval, single market, virtual library

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 9.12.2015  COM(2015) 626 final   COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Towards a modern, more European copyright framework  
 
 
1. COPYRIGHT IN THE DIGITAL SINGLE MARKET 

Digital technologies, widespread broadband connections and reliance on the internet in daily 
life have transformed the way creative content is produced, distributed and used. 

The  internet  has  become  a  key  distribution  channel.  In  2014,  49 %  of  EU  internet  users 
accessed music, video and games online.1 Business models unheard of only 15 years ago and 
new economic players like  online platforms have  become well established and today online 
services are a mainstream channel for consumers to enjoy creative content, alongside physical 
formats like books and DVDs. Making copies of content digitally is easy and quick. People 
often expect access to digital content on multiple devices, anytime and anywhere in the single 
market. When this does not happen, they find it hard to understand why. 

EU  copyright  rules  need  to  be  adapted  so  that  all  market  players  and  citizens  can  seize  the 
opportunities of this new environment. A more European framework is needed to overcome 
fragmentation and frictions within a functioning single market. 

The modernisation of EU copyright rules was first announced in President Juncker’s Political 
Guidelines  for  the  incoming  Commission  and  further  outlined  in  the  digital  single  market 
strategy.2  It  aims  to  achieve  a  wide  availability  of  creative  content  across  the  EU,  to  make 
sure that EU copyright rules continue to provide a high level of protection for right holders, 
and  to  maintain  a  good balance  with  other  public  policy  goals, like education,  research  and 
innovation, or equal access for persons with disabilities,3 in the digital environment.  

These  objectives  play  an  important  part  in  Europe’s  economic  and  societal  progress, 
international  competitiveness  and  cultural  diversity.  They  all  address  the  needs  of  right 
holders and users of copyright-protected content alike. 

Copyright rewards creativity and investment in creative content. A copyright framework that 
offers a high level of protection is the basis of the global competitiveness of Europe's creative 
industries.4 Along with the internal market principles of free movement of goods and services, 
EU competition rules, and our media and cultural policies, copyright is an integral part of the 
set  of  rules  which  govern  the  circulation  of  creative  content  across  the  EU.  The  interaction 
between copyright and these other policy areas determines how value is generated from the 
production and dissemination of works5 and how it is shared among market participants. 

Developing actions announced in the digital single market strategy, this Communication sets 
out  how  the  Commission  intends  to  achieve  the  goal  of  ‘a  more  modern,  more  European 
copyright framework’. It presents a plan that includes targeted actions with proposals for the 
very short term, including a proposal on the 'portability' of online content services presented 

1 Eurostat, ‘Community survey on ICT usage in households and by individuals’, 2014. 
2 COM(2015) 192 final. 
3 In line with the UN Convention on the Rights of Persons with Disabilities to which the EU is a party. 
4  Between  2008  and  2010,  industries  primarily  responsible  for  creating  and  producing  copyright  works 
accounted for 3.2 % of total employment and for 4.2 % of GDP in the EU (European Patent Office/Office for 
Harmonization in the Internal Market, ‘Intellectual property rights intensive industries: contribution to economic 
performance and employment in the EU’, September 2013). 
5 ‘Works’ is used in this document to mean both works protected by copyright and other subject matter protected 
by related rights, as relevant to the context. 

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together  with  this  Communication,  a  set  of  proposals  planned  for  2016,  and  a  long-term 
vision. The plan will be brought forward in line with the Better Regulation principles and is 
based  on  preparatory  work  carried  out  over  the  past  few  years  on  the  current  framework,6 
which included a comprehensive public consultation in 2013-2014.7 It takes into account the 
views of the European Parliament expressed in its recent resolution on the implementation of 
the Directive on Copyright in the Information Society8 and the conclusions of the European 
Council meeting of 25-26 June 2015.9 

Against this background, the Commission considers it necessary to: 

• 

inject more single market and, where warranted, a higher level of harmonisation into 
the  current  EU  copyright  rules,  particularly  by  addressing  aspects  related  to  the 
territoriality of copyright; 

•  where  required,  adapt  copyright  rules  to  new  technological realities  so that  the rules 

continue to meet their objectives. 

Copyright and related legislation do not deliver on their objectives in isolation. Films, drama, 
music, literature, scientific writings, cultural heritage and the rest of Europe’s creative output 
will continue to flourish  and  play a meaningful role in Europe’s growth, identity and social 
progress  only  if  competitive  creative  industries  and  the  required  market  mechanisms  are  in 
place.  Financial  and  other  support  measures  from  public  authorities,  as  permitted  by 
competition law, also play a role in achieving this. The support provided by the EU includes 
its  ‘Creative  Europe’  programme  and  research  and  innovation  funding,  notably  via  the 
'Horizon 2020' programme. Furthermore, to be effective, EU copyright rules need to be up-to-
date, properly transposed, enforced and understood on the ground. 

2. ENSURING WIDER ACCESS TO CONTENT ACROSS THE EU 

The EU should strive for a broad availability of online content services ‘without frontiers’ to 
deliver  more  choice  and  diversity  to  people.  A  better  functioning  digital  single  market  will 
also  provide  opportunities  for  creators  and  the  cultural  industries  to  expand  their  audiences 
and business and help them to stand up to international competition. 

However,  when  it  comes  to  copyright-protected  content  crossing  borders,  the  digital  single 
market  is  not  yet  a  reality.  When  people  travel  to  another  Member  State,  they  frequently 
cannot  access  content  they  have  subscribed  to  or  acquired  at  home  (i.e.  the  content  is  not 

6  The  framework  is  a  set  of  10  directives,  including  the  Directive  on  Copyright  in  the  Information  Society 
(2001/29/EC,  the  ‘InfoSoc  Directive’)  and  the  Directive  on  the  Enforcement  of  Intellectual  Property  Rights 
(2004/48/EC, the ‘IPRED Directive’, relevant for intellectual property in general). The framework also reflects 
international  obligations  deriving  from  international  treaties  to  which  the  EU  and/or  its  Member  States  are 
parties. 
7 Final report available at 
http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/docs/contributions/consultation-
report_en.pdf. 
8 http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P8-TA-2015-0273&language=EN. 
9 http://data.consilium.europa.eu/doc/document/ST-22-2015-INIT/en/pdf. 

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‘portable’).10 The range of online content available in one’s home country does not reflect the 
breadth of Europe’s cultural production and legal content offers online of European works are 
still  far  from  realising  their  full  potential.  This  is  particularly  the  case  for  European 
audiovisual  works,  which  in  many  instances  struggle  to  be  distributed,  including  online, 
beyond  one  Member  State.11  Even  when  available,  works  are  difficult  to  discover  and  find. 
Furthermore,  users  often  cannot  access  content  distribution  services  available  in  other 
Member States.12 

In an inherently borderless internet, this is not understood by people. This situation may lead 
to  the  use  of  technical  'workarounds',  like  virtual  private  networks  (VPNs),  to  get  access  to 
content  that  cannot  be  found  at  home,  and  it  can  fuel  piracy13.  Another  illustration  of  the 
current  situation is  the  number  of  works  that  would  benefit  from  wider  exposure  across the 
EU, but which cannot be found on any commercial distribution channel. 

The  causes  of  this  situation  are  multiple.  They  can  partially  be  traced  to  copyright  and  its 
territorial14  application.  The  territoriality  of  rights  does  not  prevent  the  granting  of  multi-
territorial licences,15 but there are instances where these are difficult or impossible to obtain. 
Right holders may decide to limit the territorial scope of licences granted to service providers 
and, as a result, services are limited to one or only certain territories. Service providers can 
also  decide  to  confine  a  service  to  a  particular  territory,  even  when  they  have  a  licence  to 
cover  a  broader  territory,  including  the  whole  EU,  or  such  licence  is  available  to  them.  In 
addition, acquired licences, in particular for online rights, can remain unexploited.  

The  financing  of  new  European  productions  in  the  audiovisual  sector  is,  to  a  large  extent, 
based  on  territorial  licensing  combined  with  territorial  exclusivity  granted  to  individual 
distributors  or  service  providers.  This  is  considered  necessary  by  the  European  audiovisual 
industry to preserve sustainable financing, but can prevent service providers and distributors 
from providing  cross-border ‘portability’  of services or from offering  their services  in  other 

10 In a recent survey, 33 % of respondents (a figure rising to 65 % in the 15-24 age bracket) who do not currently 
have a paying subscription for accessing content said that if they were to take up such a subscription they would 
find  it  important  to  be  able  to  use  it  while  travelling  or  staying  temporarily  in  another  Member  State  (‘Flash 
Eurobarometer 411 — Cross-border access to online content’, August 2015). 
11  In  a  study  covering  a  sample  of  50  European  films  across  six  online  providers  in  seven  Member  States, 
average  availability  reached  only  19 %  (Commission’s  calculations  based  on  data  in  ‘Annex  —  On-demand 
audiovisual markets in the EU’, a report by the European Audiovisual Observatory for DG CONNECT, April 
2014). 
12 In a recent survey, more than half (53 %) of those who reported trying to access or download digital content 
from an online service meant for users in another Member State (up to 30 % of people in one Member State) said 
that  they  did  so  because  they  were  looking  for  content  not  available  in  their  own  country;  approximately  the 
same  amount  (56  %)  said  that  they  experienced  problems  in  trying  to  do  this  (‘Flash  Eurobarometer  411  — 
Cross-border access to online content’, August 2015). 
13 According to a recent survey, 22 % of Europeans consider it is acceptable to download or access copyright-
protected  content  illegally  when  there  is  no  legal  alternative  in  their  country  (Office  for Harmonization  in  the 
Internal Market, ‘European citizens and intellectual property: perception, awareness and behaviour’, November 
2013).  
14 The rights of authors and other right holders (performers, producers and broadcasters) are largely harmonised 
at EU level. However copyright remains territorial. This means that instead of there being a single copyright title 
valid simultaneously across the whole of the EU, there are 28 separate national ones. The use of a work in all 
Member States requires the conclusion of a licence, or several licences, covering each of the national territories.  
15 Efforts to make multi-territorial licensing easier have been made through the Directive on Collective Rights 
Management (2014/26/EU). 

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Member  States.  For  out-of-commerce  works,  legal  issues  affecting  their  cross-border 
accessibility add to more general difficulties in having them licensed for digitisation and for 
making them available domestically in the first place. This limits the availability of heritage 
online. 

For  television  and  radio  broadcasting  services,  the  Satellite  and  Cable  Directive16  already 
includes  rules  that  aim  to  facilitate  the  rights  clearance  required  for  certain  cross-border 
activities.  These  rules  were  devised  well  before  the  advent  of  the  internet  as  a  distribution 
channel  for  broadcasters  and  only  apply  to  satellite  broadcasting  and  to  cable  re-
transmissions.  The  Commission  is  currently  carrying  out  a  review  of  this  directive  for  its 
potential application in the online environment.  

Other factors are also at play. For example in the audiovisual sector, a key role is played by 
the ‘market-readiness’ of works, i.e. how visible they are for potential licensees, and how easy 
it is to license them, as well as their availability in formats and in catalogues that are ready for 
use.  Another  issue  is  the  gap  between  content  offers  and  their  actual  uptake  by  potential 
audiences. Works need to be easily discovered and found by people in the first place,17 even if 
they  are  already  distributed  online,  and  they  must  be  understood  in  a  known  language.  In 
general, there is a disconnect between the resources supporting culturally diverse production 
and the efforts put into its circulation and access.18 

Ensuring wider access to creative content online and stimulating its circulation across Europe 
therefore involves combining a wide array of policy instruments. Along with a review of the 
current  copyright  legislation,  the  support  the  EU  provides  through  its  ‘Creative  Europe’ 
programme and research and innovation programmes can also play a part. Having the creative 
and  distribution  industries  and  the  Member  States  on  board  will  also  play  a  vital  role  in 
making content more widely available across the EU. The creative and distribution industries 
have the keys to evolving business models, while the Member States are primarily responsible 
for  cultural  policies  in  the  EU.  Member  States  also  provide  and  manage  most  of  the  public 
funds directly supporting the European audiovisual industry, amounting to EUR 2.1 billion a 
year.19 

The ultimate objective of full cross-border access for all types of content across Europe needs 
to be balanced with the readiness of markets to respond rapidly to legal and policy changes 
and  the  need  to  ensure  viable  financing  models  for  those  who  are  primarily  responsible  for 
content  creation.  The  Commission  is  therefore  proposing  a  gradual  approach  to  removing 
obstacles to cross-border access to content and to the circulation of works. 

As a first step, the Commission is presenting together with this Communication a proposal for 
a  regulation  on  the  ‘portability’  of  online  content  services,  to  ensure  that  users  who  have 
subscribed  to  or  acquired  content  in  their  home  country  can  access  it  when  they  are 

16 Directive on Satellite Broadcasting and Cable Retransmission (93/83/EEC). 
17 The Commission is also looking at how European audiovisual content, including non-national content, can be 
promoted as part of its assessment of the Directive on Audiovisual Media Services (2010/13/EU). 
18 This is addressed by the EU’s ‘Creative Europe’ programme (its MEDIA sub-programme in particular), which 
focuses strongly on promotion and distribution. 
19  European  Audiovisual  Observatory,  ‘Public  Funding  for  Film  and  Audiovisual  Works  in  Europe’,  October 
2011.  This  figure  refers  to  2009  and  only  includes  direct  support  (including  EU-level  support,  which  was 
however a small fraction of the total). 

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temporarily in another Member State. 

Furthermore, in order to allow for wider online access to works by users across the EU, the 
Commission is assessing options and will consider legislative proposals for adoption in spring 
2016 including: 

  Enhancing cross-border distribution of television and radio programmes online in 

the light of the results of the review of the Satellite and Cable Directive; 

  Supporting  right  holders  and  distributors  to  reach  agreement  on  licences  that  allow 
for  cross-border  access  to  content,  including  catering  for  cross-border  requests 
from  other  Member  States,  for  the  benefit  of  both  European  citizens  and 
stakeholders in the audiovisual chain. In this context, the role of mediation, or similar 
alternative dispute resolution mechanisms, to help the granting of such licences, will 
be considered; 

  Making  it  easier  to  digitise  out-of-commerce  works  and  make  them  available, 

including across the EU.  

The  Commission  will  also,  by  leveraging  its  'Creative  Europe'  programme  and  other  policy 
instruments:  

  Further promote tools to bring more European works into the single market, including 
the  creation  of  ready-to-offer  catalogues  of  European  films,  the  development  of 
licensing  hubs  (to  help  the  licensing  of  works  that  are  not  yet  available  in  a  given 
Member  State),  and  a  larger  use  of  standard  identifiers  of  works  (including  by 
exploring links with the MEDIA sub-programme); 

 

  Support the development of a European aggregator of online search tools20 destined 
to end users (online indexation of available legal offers) and of national search tools, 
as well as promote more efficient funding for, and use of, subtitling and dubbing 
supported by public funds;  
Intensify its dialogue with the audiovisual industry to promote legal offers and the 
discoverability  and  findability  of  films  (in  its  new  partnership  with  national  film 
funds),  to  find ways  for  a  more sustained exploitation of existing  European films 
(with  the  European  Film  Forum),  and  to  explore  alternative  models  of  financing, 
production  and  distribution  in  the  animation  sector  that  are  scalable  at  European 
level (in a structured industry cooperation forum). 

3. ADAPTING EXCEPTIONS TO DIGITAL AND CROSS-BORDER ENVIRONMENTS 

The  fragmentation  of  copyright  rules  in  the  EU  is  particularly  visible  in  the  area  of 
exceptions. The exceptions set out in EU law are, in most cases, optional for Member States 
to implement.21 Often exceptions are not defined in detail. As a consequence, an exception in 
the law of one Member State may not exist in a neighbouring one, or be subject to different 
conditions  or  vary  in  scope.  In  some  cases  the  implementation  of  a  given  exception  in 
Member  States'  law  is  narrower  than  what  EU  law  permits.22  Most  exceptions  do  not  have 

20 In cooperation with the European Observatory on Infringements of Intellectual Property Rights. 
21  EU  law  only provides for  two  mandatory  exceptions:  in  article  5(1)  of  the  InfoSoc Directive,  which  covers 
certain  temporary  acts  of  reproduction,  and  in  article  6  of  the  Directive  on  Certain  Permitted  Uses  of  Orphan 
Works (2012/28/EU).   
22 The case law of the Court of Justice of the EU (CJEU) has repeatedly acknowledged that Member States must 
exercise the discretion they enjoy when implementing exceptions in their national law within the limits imposed 
by  EU  law.  In  particular,  Member  States  are  not  free  to  determine  the  limits  of  a  given  exception  in  an 

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effect  beyond  a  given  Member  State.  Some  of  them  may  also  need  to  be  reassessed  in  the 
light of today’s technological realities.  

This situation seems to be posing problems in particular for those exceptions that are closely 
related to education, research and access to knowledge. The EU exception on illustration in 
teaching is a good example of how Member States implement exceptions in different ways, 
particularly  when  we  look  at  Member  States’  understanding  of  how  the  exception  should 
apply in digital environments. These differences could act as a brake on education trends like 
online  courses,  in-classroom  use  of  technologies  and  digital  materials  and  cross-border 
learning  which  have  gained  considerable  ground  in  recent  years.23  In  addition,  the 
heterogeneous national implementation of the exception commonly referred to as 'panorama 
exception',  which  lets  people  take  and  upload  pictures  of  works  such  as  buildings  or 
sculptures permanently located in public spaces, may give rise to uncertainties. 

Similarly, the optional nature and the lack of cross-border effect for the disability exception 
raise problems. For instance, they make it difficult for people with print disabilities to access 
special  formats  made  under  the  copyright  exception  of  another  Member  State.  The  EU  has 
given  an  international  commitment  to  address  this  issue  by  signing  up  to  the  Marrakesh 
Treaty,24 which now needs to be ratified and implemented. 

The  need  to  better  reflect  technological  advances  and  avoid  uneven  situations  in  the  single 
market is also clear with text-and-data mining (TDM), through which vast amounts of digital 
content are read and analysed by machines in the context of science and research. The lack of 
a  clear  EU  provision  on  TDM  for  scientific  research  purposes  creates  uncertainties  in  the 
research community. This harms the EU’s competitiveness and scientific leadership at a time 
when  research  and  innovation  (R&I)  activities  within  the  EU  must  increasingly  take  place 
through cross-border and cross-discipline collaboration and on a larger scale, in response to 
the  major  societal  challenges  that  R&I  addresses.  Similarly,  the  EU  exception  authorising 
libraries  and  other  institutions  to  allow  on-screen  consultation  of  works  for  research  and 
private study only applies to terminals on the libraries’ physical premises, which does not take 
into  account  today’s  technological  possibilities  for  remote  consultation.  Lastly,  the  EU 
exception  on  preservation  activities  by  cultural  heritage  institutions  also  needs  attention, 
notably  because  Member  States  often  do  not  take  digital  formats  into  account  when 
implementing the exception at national level.25 

The  Commission  will  take  action  to  ensure  that  the  EU  framework  on  exceptions  that  is 
relevant  for  access  to  knowledge,  education  and  research  is  effective  in  the  digital  age  and 

inconsistent and non-harmonised manner, varying from one Member State to another (Case C-467/08 Padawan). 
The CJEU also said that, whilst exceptions must be interpreted strictly, Member States have to safeguard their 
effectiveness to permit observance of the exception's purpose (Case C-145/10 Painer). 
23 In a 2013 survey of higher education, 82 % of institutions indicated that they offer online courses, and 40 % 
estimated that at least half of their students were engaged in e-learning (European Universities Association, ‘E-
learning in European Higher Education Institutions’, November 2014). 
24 The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, 
or otherwise Print Disabled, signed on behalf of the EU on 30 April 2014. 
25  90 %  of  institutional  respondents  to  a  2015  survey  declared  that  they  have  collections  that  need  to  be 
preserved  for  future  generations,  and  an  average  of  60 %  said  that  they  collect  ‘born-digital’  material 
(ENUMERATE, ‘Survey Report on Digitisation in European Cultural Heritage Institutions 2015’, June 2015). 

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across borders.  

As  a  first  step,  the  Commission  will  propose  the  legislation  required  to  implement  the 
Marrakesh Treaty.  

The  Commission  is  assessing  options  and  will  consider  legislative  proposals  on  other  EU 
exceptions by spring 2016, in order to: 

  allow  public  interest  research  organisations  to  carry  out  text  and  data  mining  of 
content  they  have  lawful  access  to,  with  full  legal  certainty,  for  scientific  research 
purposes; 

  provide clarity on the scope of the EU exception for ‘illustration for teaching’, and 

its application to digital uses and to online learning; 

  provide a clear space for preservation by cultural heritage institutions, reflecting the 
use of digital technologies for preservation and the needs of born-digital and digitised 
works; 

  support remote consultation, in closed electronic networks, of works held in research 
and academic libraries and other relevant institutions, for research and private study; 
  clarify  the  current  EU  exception  permitting  the  use  of  works  that  were  made  to  be 
permanently  located  in  the  public  space  (the  ‘panorama  exception’),  to  take  into 
account new dissemination channels. 

The  general  objective  is  to  increase  the  level  of  harmonisation,  make  relevant  exceptions 
mandatory  for  Member  States  to  implement  and  ensure  that  they  function  across  borders 
within the EU.  

In  preparing  the  proposals,  the  Commission  will  take  into  account  the  relevant  market 
situation and licensing practices for the uses concerned, and care will be taken to comply with 
international obligations, including the ‘three-step’ test.26 The aim is to give users and right 
holders a legally certain and predictable system. 

Levies that compensate right holders for the reprography and private copying exceptions can 
be a significant  source of  revenue but  also raise single market issues. Many Member States 
impose  these  levies  on  a  wide  range  of  media  and  devices,  and  they  are  set,  applied  and 
administered in a variety of different ways.  

This  has  caused  considerable  legal  uncertainty.  The  substantial  case  law  of  the  Court  of 
Justice  of  the  EU  (CJEU)  has  clarified  some  of  the  issues  signalled  by  the  2013  Vitorino 
Report27  as  detrimental  to  the  free  movement  of  goods  and  services.  However,  persisting 
national disparities can be problematic, especially when products subject to levies are traded 
across  the  EU.  Levies  are  sometimes  imposed  by  Member  States  irrespective  of  payments 
already made in other Member States, or without proper exemption or refund schemes. Undue 
payments  may  also  occur  when  products  for  professional  use  are  levied.  Consumers  are 
confronted with lack of clarity and transparency. There can also be discriminatory practices in 
the  distribution  of  collected  levies  favouring  national  right  holders.  This  situation  may 
warrant intervention at EU level to provide greater clarity and put an end to major distortions. 

26 The 'three-step' test, enshrined in the main international treaties on copyright, provides that exceptions shall 
only  be  applied  in  certain  special  cases  which  do  not  conflict  with  a  normal  exploitation  of  a  work  or  other 
subject matter and do not unreasonably prejudice the legitimate interests of the right holder. 
27 This was the outcome of a mediation process led by Mr António Vitorino. 

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The Commission will assess the need for action to ensure that, when Member States impose 
levies  for  private  copying  and  reprography  to  compensate  right  holders,  their  different 
systems  work  well  in the  single market  and  do  not  raise  barriers to  the  free movement  of 
goods  and  services.  Issues  that  may  need  to  be  addressed  include  the  link  between 
compensation and harm to right holders, the relation between contractual agreements and the 
sharing  of  levies,  double  payments,  transparency  towards  consumers,  exemptions  and  the 
principles  governing  refund  schemes,  and  non-discrimination  between  nationals  and  non-
nationals  in  the  distribution  of  any  levies  collected.  The  Commission  will  also  promote  a 
reflection on how levies can be more efficiently distributed to right holders. 

4. ACHIEVING A WELL-FUNCTIONING MARKETPLACE FOR COPYRIGHT 

A  precondition  for  a  well-functioning  market  place  for  copyright  is  the  possibility  for  right 
holders to license and be paid for the use of their content, including content distributed online. 
The production of rich and diverse creative content and innovative online services are part of 
the same equation. Both — creative content and online services — are important for growth 
and jobs and the success of the internet economy. 

There is, however, growing concern about whether the current EU copyright rules make sure 
that  the  value  generated  by  some  of  the  new  forms  of  online  content  distribution  is  fairly 
shared, especially where right holders cannot set licensing terms and negotiate on a fair basis 
with  potential  users.  This  state  of  affairs  is  not  compatible  with  the  digital  single  market’s 
ambition  to  deliver  opportunities  for  all  and  to  recognise  the  value  of  content  and  of  the 
investment that  goes into it. It also means the playing field is not level for different market 
players engaging in equivalent forms of distribution.  

Currently, these discussions centre on certain online platforms and aggregation services. They 
are,  however,  likely  to  continue  to  arise  for  all  online  activities  involving  the  commercial 
reuse or retransmission of copyright-protected content. 

There  are  various  reasons  for  this  situation,  both  legal  and  market-related  (including  the 
relative  market  power  of  the  parties  involved).  From  a  copyright  perspective,  an  important 
aspect is the definition of the rights of communication to the public and of making available. 
These  rights  govern  the  use  of  copyright-protected  content  in  digital  transmissions.  Their 
definition therefore determines what constitutes an act on the internet over which creators and 
the creative industries can claim rights and can negotiate licences and remuneration. There are 
contentious grey areas and uncertainty about the way these concepts are defined in EU law, in 
particular  about  which  online  acts  are  considered  ‘communication  to  the  public’  (and 
therefore require authorisation by right holders), and under what conditions.28 These questions 
create on the one hand uncertainty in the market and, on the other, put into question the ability 
of these rights to transpose into the online world the basic principle of copyright that acts of 
exploitation  need  to  be  authorised  and  remunerated.  Apart  from  its  significance  for  the  fair 
distribution of value in the online market place, lack of clarity on the definition of these rights 
can also generate uncertainty for ordinary internet users. 

28 This uncertainty has resulted in a number of questions being referred to the CJEU for preliminary rulings. 

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More broadly, the situation raises questions about whether the current set of rights recognised 
in EU law is sufficient and well-designed. For news aggregators, in particular, solutions have 
been attempted in certain Member States, but they carry the risk of more fragmentation in the 
digital single market. 

In addition, platforms can also consider that they are not engaging in copyright-relevant acts 
at all, or that their activities are of a merely technical, automatic and passive nature, allowing 
them  to  benefit  from  the  liability  exemption  of  the  e-Commerce  Directive.29  This  has 
prompted  a  growing  debate  on  the  scope  of  this  exemption  and  its  application  to  the  fast-
evolving roles and activities of new players, and on whether these go beyond simple hosting 
or mere conduit of content. 

Another relevant issue is fair remuneration of authors and performers, who can be particularly 
affected  by  differences  in  bargaining  power  when  licensing  or  transferring  their  rights. 
Mechanisms  which  stakeholders  raise  in  this  context  include  the  regulation  of  certain 
contractual  practices,  unwaivable  remuneration  rights,  collective  bargaining  and  collective 
management of rights. 

The Commission is reflecting and consulting30 on the different factors around the sharing of 
the value created by new forms of online distribution of copyright-protected works among the 
various market players. The Commission will consider measures in this area by spring 2016. 
The objective will be to ensure that the players that contribute to generating such value have 
the ability to fully ascertain their rights, thus contributing to a fair allocation of this value and 
to the adequate remuneration of copyright-protected content for online uses.  

In this context, the Commission will examine whether action is needed on the definition of 
the rights of ‘communication to the public’ and of ‘making available’. It will also consider 
whether any  action  specific  to  news  aggregators  is needed, including intervening on rights. 
The role of alternative dispute resolution mechanisms will also be assessed. The Commission 
will take into account the different factors that influence this situation beyond copyright law, 
to ensure consistent and effective policy responses. Initiatives in this area will be consistent 
with the Commission's work on online platforms as part of the digital single market strategy. 

The  Commission  will  also  consider  whether  solutions  at  EU  level  are  required  to  increase 
legal  certainty,  transparency  and  balance  in  the  system  that  governs  the  remuneration  of 
authors and performers in the EU, taking national competences into account. 

5. PROVIDING AN EFFECTIVE AND BALANCED ENFORCEMENT SYSTEM 

Respect  for  copyright,  as  for  any  other  intellectual  property  right,  is  essential  to  promote 
creativity and innovation and create trust in the market place. Rights that cannot be effectively 
enforced have little economic value, particularly when infringements occur on a commercial 
scale that free-rides on the work and investment of creators, the creative industries and legal 
distribution  services.  Such  commercial-scale  infringements  are  currently  very  frequent  and 

29 Directive 2000/31/EC. 
30 The Commission is consulting on these and other issues related to online platforms: 
https://ec.europa.eu/eusurvey/runner/Platforms. 

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harmful, not only to right holders but also to the EU economy as a whole. An effective and 
balanced  civil  enforcement31  system,  which  takes  full  account  of  fundamental  rights,  is 
required to reduce the costs of fighting infringements, particularly for small businesses, and 
keep up with their increasing cross-border nature. 

An effective response to these challenges calls for a renewed effort and for a possible review 
of  certain  aspects  of  the  existing  legal  framework.  A  ‘follow-the-money’  approach,  which 
sees  the  involvement  of  different  types  of  intermediary  service  providers,  seems  to  be  a 
particularly  promising  method  that  the  Commission32  and  Member  States  have  started  to 
apply  in  certain  areas.  It  can  deprive  those  engaging  in  commercial  infringements  of  the 
revenue streams (for example from consumer payments and advertising) emanating from their 
illegal  activities,  and  therefore  act  as  a  deterrent.  Furthermore,  the  current  legal  framework 
seems  not  to  be  fully  fit  for  the  challenges  of  the  digital  single  market,  particularly  with 
regard  to  applying  the  right  of  information,  injunctions  and  their  cross-border  effect, 
calculating damages and reimbursing legal costs. The Commission is currently evaluating the 
functioning  of  the  broader  intellectual  property  rights  framework  and  is  consulting  the 
public33  on  these  matters,  in  line  with  the  digital  single  market  strategy  and  the  internal 
market strategy34 objectives. It is also important that systems that allow illegal content to be 
removed by hosting services, once identified, are effective and transparent and prevent legal 
content from  being  taken down erroneously. These systems, which apply horizontally to all 
types  of  illegal  content,  are  very  relevant  for  the  enforcement  of  copyright,  as  copyrighted 
material accounts for a large portion of the content subject to notices. 

The Commission will take immediate action to engage, with all parties concerned, in setting 
up and applying ‘follow-the-money’ mechanisms, based on a self-regulatory approach, with 
the objective of reaching agreements by spring 2016. Codes of conduct at EU level could be 
backed by legislation, if required to ensure their full effectiveness.   

As  regards  the  legal  framework  for  the  enforcement  of  intellectual  property  rights, 
including  copyright,  the  Commission  will  assess  options  and  consider  by  autumn  2016  the 
need to amend the legal framework focussing on commercial-scale infringements, inter alia to 
clarify, as appropriate, the rules for identifying infringers, the application of provisional and 
precautionary  measures  and  injunctions  and  their  cross-border  effect,  the  calculation  and 
allocation of damages and legal costs. 

The Commission is also carrying out a comprehensive assessment and a public consultation 
on  online  platforms,35  which  also  covers  ‘notice  and  action’  mechanisms  and  the  issue  of 
action remaining effective over time (the ‘take down and stay down’ principle). 

31  The  EU  legal  framework  for  the  enforcement  of  copyright  is  set  out  in  the  IPRED  Directive,  and  in  some 
provisions of the InfoSoc Directive. 
32 COM(2013) 209 final. 
33 http://ec.europa.eu/growth/tools-databases/newsroom/cf/itemdetail.cfm?item_id=8580. 
34 COM(2015) 550 final.  
35 https://ec.europa.eu/eusurvey/runner/Platforms. 

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6. FOSTERING A LONG-TERM VISION 

Copyright  will  continue  to  matter  to  the  economy,  society  and  culture  in  the  long  term.  In 
some areas, the promise of market-led solutions in response to emerging uses, particularly as 
regards the cross-border dimension, will need to be monitored. More generally, the EU should 
stand ready to  respond to the need for its  national copyright systems to  further converge as 
content  markets  become  closer  and  user  behaviour  further  evolves,  underpinned  by  rapid 
technological developments. 

The effective and uniform application of copyright legislation across the EU, both by national 
legislators and the courts, will continue to be as important as the rules themselves. Potential 
difficulties  and  barriers  to  the  single  market  should  be  identified  as  early  as  possible  and 
addressed through proper mechanisms. The Commission will facilitate a structured dialogue 
between  Member  States  to  ensure  a  shared  understanding  of  EU  copyright  law  and  foster 
convergence of national laws, including as regards enforcement. 

The  Commission  will  also  continue  to  be  vigilant  about  aligning  the  legal  framework, 
including  exceptions  and  licensing  mechanisms,  with  market  developments  and  consumer 
behaviour. It will do so with particular regard to emerging issues that require further analysis 
and  monitoring.  It  will  undertake  stakeholder  dialogues  and  further  consultation  where 
appropriate. 

This  approach  is  incremental,  moving  towards  the  realisation  of  a  long-term  vision  for 
copyright in the EU: one where authors and performers, the creative industries, users and all 
those concerned by copyright are subject to the very same rules, irrespective of where they are 
in  the  EU.  In  this  context,  the  Commission  may  call  upon  experts  to  assist  it  with  defining 
further need for reform of EU copyright rules. 

The full harmonisation of copyright in the EU, in the form of a single copyright code and a 
single  copyright  title,  would  require  substantial  changes  in  the  way  our  rules  work  today. 
Areas  that  have  so  far  been  left  to  the  discretion  of  national  legislators  would  have  to  be 
harmonised.  Uniform  application  of  the  rules  would  call  for  a  single  copyright  jurisdiction 
with its own tribunal, so that inconsistent case law does not lead to more fragmentation. 

These  complexities  cannot  be  a  reason  to  relinquish  this  vision  as  a  long-term  target. 
Notwithstanding the particularities of copyright and its link with national cultures, difficulties 
and long lead-times have also accompanied the creation of single titles and single rulebooks 
in other areas of intellectual property, notably trademarks and patents, where they are now a 
reality. 

The  EU  should  pursue  this  vision  for  the  very  same  reason  it  has  given  itself  common 
copyright  legislation:  to  build  the  EU’s  single  market,  a  thriving  European  economy  and  a 
space where the diverse cultural, intellectual and scientific production of Europe travel across 
the EU as freely as possible. 

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