Opinion of the European Committee of the Regions — Modernisation of the EU copyright rules
Date: 2016-04-08
Institutions: Commission for Social Policy, Education, Employment, Research and Culture, European Committee of the Regions
Subjects: Internet, audiovisual industry, copyright, cross-frontier data flow, digital technology, electronic commerce, freedom to provide services, provision of services, single market








C_2016240EN.01007201.xml










1.7.2016   


EN


Official Journal of the European Union


C 240/72





Opinion of the European Committee of the Regions — Modernisation of the EU copyright rules
(2016/C 240/11)











Rapporteur:


Arnoldas ABRAMAVIČIUS (LT/EPP) Member of Zarasai District Municipal Council




Reference document:


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
COM(2015) 626 — final
Proposal for a Regulation of the European Parliament and of the Council on ensuring the cross-border portability of online content services in the internal market
COM(2015) 627 — final








I.   RECOMMENDATIONS FOR AMENDMENTS


Amendment 1

Proposal for a Regulation
Recital 1








Text proposed by the Commission






CoR amendment






Since the internal market comprises an area without internal frontiers relying, inter alia, on the free movement of services and persons, it is necessary to provide that consumers can use online content services which offer access to content such as music, games, films or sporting events not only in their Member State of residence but also when they are temporarily present in other Member States of the Union. Therefore, barriers that hamper access and use of such online content services cross border should be eliminated.


Since the internal market comprises an area without internal frontiers relying, inter alia, on the free movement of services and persons, it is necessary to provide that consumers can use online content services which offer access to content such as music, games, films or sporting events not only in their Member State of residence but also when they are temporarily present in other Member States of the Union. Therefore, barriers that hamper access and use of such online content services cross border should be eliminated
. At the same time, verification of the subscriber’s Member State of residence should avoid turning portability into permanent cross-border access
.






Reason


Right holders need to be sure that portability covers only the most common examples of travel for business, tourism or study purposes, without resulting in the permanent availability of content protected at EU level.

Amendment 2

Proposal for a Regulation
Recital 4








Text proposed by the Commission






CoR amendment






There are a number of barriers which hinder the provision of these services to consumers temporarily present in another Member State. Certain online services include content such as music, games or films which are protected by copyright and/or related rights under Union law. In particular, the obstacles to cross-border portability of online content services stem from the fact that the rights for the transmission of content protected by copyright and/or related rights such as audiovisual works are often licensed on a territorial basis as well as from the fact that online service providers may choose to serve specific markets only.


There are a number of barriers which hinder the provision of these services to consumers temporarily present in another Member State. Certain online services include content such as music, games or films which are protected by copyright and/or related rights under Union law. In particular, the obstacles to cross-border portability of online content services stem from the fact that the rights for the transmission of content protected by copyright and/or related rights such as audiovisual works are often licensed on a territorial basis as well as from the fact that online service providers 
to some extent
, choose to serve specific markets only.






Reason


Online service providers, like any other business, are free to decide which markets to enter for their own internal reasons. If, as a result, content is less available, this should be treated as a secondary effect, and not as a deliberately restrictive approach.

Amendment 3

Proposal for a Regulation
Recital 8








Text proposed by the Commission






CoR amendment






Therefore, providers of online content services that make use of works or other protected subject-matter, such as books, audiovisual works, recorded music or broadcasts must have the rights to use such content for the relevant territories.


Therefore, providers of online content services that make use of works or other protected subject-matter, such as books, audiovisual works, recorded music or broadcasts must have the rights to use such content for the relevant territories
, including through the use of multi-territory or pan-European licensing where conditions allow this, for instance: where there is a market, consumer demand, the necessary technology and a guarantee of fair remuneration
.






Reason


It is worth mentioning multi-territory licensing, which — although not always available — significantly facilitates the dissemination of content.

Amendment 4

Proposal for a Regulation
Recital 9








Text proposed by the Commission






CoR amendment






The transmission by the online service provider of content that is protected by copyright and related rights requires the authorisation of the relevant right holders such as authors, performers, producers or broadcasting organisations for the content that would be included in the transmission. This is equally true when such transmission takes place for the purpose of allowing a consumer to carry out a download in order to use an online content service.


The transmission by the online service provider of content that is protected by copyright and related rights requires the authorisation of the relevant right holders such as authors, performers, producers or broadcasting organisations
, exercising the exclusive rights for which they qualify,
 for the content that would be included in the transmission. This is equally true when such transmission takes place for the purpose of allowing a consumer to carry out a download in order to use an online content service.






Reason


Right holders are entitled to protect the exclusive rights for which they individually qualify, as set out in Directive 2014/26/EU.

Amendment 5

Proposal for a Regulation
Recital 10








Text proposed by the Commission






CoR amendment






The acquisition of a licence for the relevant rights is not always possible, notably when rights in content are licensed on an exclusive basis. In order to ensure the territorial exclusivity, online service providers often undertake, in their licence contracts with right holders, including broadcasting organisations or events organisers, to prevent their subscribers from accessing and using their service outside the territory for which the service provider holds the licence. These contractual restrictions imposed on service providers require providers to take measures such as disallowing access to their services from IP addresses located outside the territory concerned. Therefore, one of the obstacles to the cross-border portability of online content services is to be found in the contracts concluded between the online service providers and their subscribers, which in turn reflect the territorial restriction clauses included in contracts concluded between those service providers and right holders.


The acquisition of a licence for the relevant rights is not always possible, notably when rights in content are licensed on an exclusive basis. In order to ensure the territorial exclusivity 
(and a competitive advantage)
, online service providers often undertake, in their licence contracts with right holders, including broadcasting organisations or events organisers, to prevent their subscribers from accessing and using their service outside the territory for which the service provider holds the licence. These contractual restrictions imposed on service providers require providers to take measures such as disallowing access to their services from IP addresses located outside the territory concerned. Therefore, one of the obstacles to the cross-border portability of online content services is to be found in the contracts concluded between the online service providers and their subscribers, which in turn reflect the territorial restriction clauses included in contracts concluded between those service providers and right holders.






Reason


Online service providers are entitled to choose to make specific content available in areas where it is likely to be more successful. In this respect disabling geo-blocking while travelling should be seen as an extension of the concept of territoriality and not as a first step towards its eventual abolition.

Amendment 6

Proposal for a Regulation
Recital 12








Text proposed by the Commission






CoR amendment






Therefore, the objective of this Regulation is to adapt the legal framework in order to ensure that the licensing of rights no longer presents barriers to cross-border portability of online content services in the Union and that the cross-border portability can be ensured.


Therefore, the objective of this Regulation is to adapt the legal framework in order to ensure that the licensing of rights no longer presents barriers to cross-border portability of online content services in the Union and that the cross-border portability can be ensured 
by securing adequate flexibility for consumers, on the one hand, and the same degree of respect for the creative and commercial value of the content, on the other
.






Reason


Consumer benefits should not come at the expense of creators and operators in the sector since these works could not exist without the former and could not be enjoyed without the latter.

Amendment 7

Proposal for a Regulation
Recital 23








Text proposed by the Commission






CoR amendment






Service providers should ensure that their subscribers are properly informed about the conditions of enjoyment of online content services in Member States other than the Member State of residence of the subscribers. The Regulation enables right holders to require that the service provider make use of effective means in order to verify that the online content service is provided in conformity with this Regulation. It is necessary, however, to ensure that the required means are reasonable and do not go beyond what is necessary in order to achieve this purpose. Examples of the necessary technical and organisational measures may include sampling of IP address instead of constant monitoring of location, transparent information to the individuals about the methods used for the verification and its purposes, and appropriate security measures. Considering that for purposes of the verification what matters is not the location, but rather, in which Member State the subscriber is accessing the service, precise location data should not be collected and processed for this purpose. Similarly, where authentication of a subscriber is sufficient in order to deliver the service provided, identification of the subscriber should not be required.


Service providers should ensure that their subscribers are properly informed about the conditions of enjoyment of online content services in Member States other than the Member State of residence of the subscribers. The Regulation enables right holders to require that the service provider make use of effective means in order to verify that the online content service is provided in conformity with this Regulation. It is necessary, however, to ensure that the required means are reasonable and do not go beyond what is necessary in order to achieve this purpose. Examples of the necessary technical and organisational measures may include sampling of IP address instead of constant monitoring of location, transparent information to the individuals about the methods used for the verification and its purposes, and appropriate security measures. Considering that for purposes of the verification what matters is not the location, but rather, in which Member State the subscriber is accessing the service, precise location data should not be collected and processed for this purpose
, provided that the location is not outside the EU
. Similarly, where authentication of a subscriber is sufficient in order to deliver the service provided, identification of the subscriber should not be required.






Reason


Without precise location data, the provider’s ability to verify location is seriously impaired since it is in fact being assumed that any cross-border use will take place within the EU, which is not necessarily the case.

Amendment 8

Proposal for a Regulation
Article 2








Text proposed by the Commission






CoR amendment






For the purpose of this Regulation, the following definitions shall apply:


For the purpose of this Regulation, the following definitions shall apply:










(a)


‘Subscriber’ means any consumer who, on the basis of a contract for the provision of an online content service with a provider, may access and use such service in the Member State of residence;












(a)


‘Subscriber’ means any consumer who, on the basis of a contract for the provision of an online content service with a provider, may access and use such service in the Member State of residence;














(b)


‘Consumer’ means any natural person who, in contracts covered by this Regulation, is acting for purposes which are outside his or her trade, business, craft or profession;












(b)


‘Consumer’ means any natural person who, in contracts covered by this Regulation, is acting for purposes which are outside his or her trade, business, craft or profession;














(c)


‘Member State of residence’ means the Member State where the subscriber is habitually residing;












(c)


‘Member State of residence’ means the Member State where the subscriber is habitually residing;














(d)


‘Temporarily present’ means a presence of a subscriber in a Member State other than the Member State of residence;












(d)


‘Temporarily present’ means a presence of a subscriber in a Member State other than the Member State of residence, 
which is verified so that portability does not become permanent cross-border access
;














(e)


‘Online content service’ means a service as defined by Articles 56 and 57 of the Treaty on the Functioning of the European Union that a service provider is lawfully providing online in the Member State of residence on a portable basis and which is an audiovisual media service within the meaning of Directive 2010/13/EU or a service the main feature of which is the provision of access to and use of works, other protected subject matter or transmissions of broadcasting organisations, whether in a linear or an on-demand manner, which is provided to a subscriber on agreed terms either:












(e)


‘Online content service’ means a service as defined by Articles 56 and 57 of the Treaty on the Functioning of the European Union that a service provider is lawfully providing online in the Member State of residence on a portable basis and which is an audiovisual media service within the meaning of Directive 2010/13/EU or a service the main feature of which is the provision of access to and use of works, other protected subject matter or transmissions of broadcasting organisations, whether in a linear or an on-demand manner, which is provided to a subscriber on agreed terms either:














 








(1)


against payment of money; or
















 








(1)


against payment of money; or


















 








(2)


without payment of money provided that the subscriber’s Member State of residence is verified by the provider;
















 








(2)


without payment of money provided that the subscriber’s Member State of residence is verified by the provider;


















(f)


‘Portable’ means that subscribers can effectively access and use the online content service in the Member State of residence without being limited to a specific location.












(f)


‘Portable’ means that subscribers can effectively access and use the online content service in the Member State of residence without being limited to a specific location.










Reason


Right holders need to be sure that portability does not result in the permanent availability of content protected at EU level.

Amendment 9

Proposal for a Regulation
Article 8








Text proposed by the Commission






CoR amendment












(1)


This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.












(1)


This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.














(2)


It shall apply from [date: 
6
 months following the day of its publication].












(2)


It shall apply from [date: 
12
 months following the day of its publication].










Reason


Given the significant number of contracts directly affected by the Regulation, the interested parties must be given enough time to amend the relevant provisions. For this reason, extending the deadline for its application to 12 months would contribute to achieving greater conformity.

Amendment 10

Proposal for a Regulation








Text proposed by the Commission






CoR amendment






This Regulation should apply to online content services which are provided against payment of money. Providers of such services are in a position to verify the Member State of residence of their subscribers. The right to use an online content service should be regarded as acquired against payment of money whether such payment is made directly to the provider of the online content service, or to another party such as a provider offering a package combining a telecommunications service and an online content service operated by another provider.


This Regulation should apply to online content services which are provided against payment of money. Providers of such services are in a position to verify the Member State of residence of their subscribers 
and verification should avoid turning portability into permanent cross-border access
. The right to use an online content service should be regarded as acquired against payment of money whether such payment is made directly to the provider of the online content service, or to another party such as a provider offering a package combining a telecommunications service and an online content service operated by another provider.






Reason


Self-explanatory

Amendment 11

Proposal for a Regulation
Article 17








Text proposed by the Commission






CoR amendment






Online content services which are provided without payment of money are also included in the scope of this Regulation to the extent that providers verify the Member State of residence of their subscribers. Online content services which are provided without the payment of money and whose providers do not verify the Member State of residence of their subscribers should be outside the scope of this Regulation as their inclusion would involve a major change to the way these services are delivered and involve disproportionate costs. As concerns verification of the subscriber’s Member State of residence, information such as a payment of a licence fee for other services provided in the Member State of residence, the existence of a contract for internet or telephone connection, IP address or other means of authentication, should be relied upon, if they enable the provider to have reasonable indicators as to the Member State of residence of its subscribers.


Online content services which are provided without payment of money are also included in the scope of this Regulation to the extent that providers verify the Member State of residence of their subscribers. Online content services which are provided without the payment of money and whose providers do not verify the Member State of residence of their subscribers should be outside the scope of this Regulation as their inclusion would involve a major change to the way these services are delivered and involve disproportionate costs. As concerns verification of the subscriber’s Member State of residence, information such as a payment of a licence fee for other services provided in the Member State of residence, the existence of a contract for internet or telephone connection, IP address or other means of authentication, should be relied upon, if they enable the provider to have reasonable indicators as to the Member State of residence of its subscribers and to avoid abuses in portability rights.






Reason


Self-explanatory
II.   POLICY RECOMMENDATIONS

THE EUROPEAN COMMITTEE OF THE REGIONS

Preliminary remarks









1.


welcomes the proposed measures concerning the internal market for e-communications designed to promote dynamic and sustainable growth in all economic sectors and to create jobs, as well as to ensure that copyright rules are modernised in light of the digital revolution and changes in consumer behaviour but regrets that the scope of the proposed regulation is limited to online content services and does not address other types of copyright in the digital single market;












2.


emphasises the key role and potential of local and regional authorities in the harmonisation of copyright rules, which should be considered in all future legislation designed to complete the digital single market;












3.


notes that the Commission presents entirely persuasive arguments on the added value of legislating in this area at European Union level and thus is on compliance with the subsidiarity principle. The same applies to the arguments put forward concerning proportionality;












4.


notes the important role that local and regional authorities play in providing digital services for citizens and creating and managing digital infrastructure, often in the context of cross-border or interregional cooperation; these services require immediate action to make balanced changes to any barriers to cross-border online activity, including differences between the contract and copyright laws of Member States;












5.


draws attention to the importance of making public institutions accessible to individuals and businesses through electronic means, irrespective of their physical location, and therefore emphasises its support for the development of cross-border public services, especially those covering aspects of interoperability and e-identification, e-signatures, the electronic service of documents and other aspects of e-government;












6.


emphasises that the internet’s openness is a key driver for competitiveness, economic growth, social development and innovation and has led to exceptional levels of development with regard to online applications, content and services, resulting in a remarkable expansion in the supply of and demand for content and services; this openness has also been a major catalyst for the free circulation of knowledge, ideas and information, including in countries with limited access to independent means of communication (1);












7.


points out that public services and the digital economy are important for European as well as local and regional growth. At the same time, cities and regions have a key role to play in creating public information databases, providing data security, developing the necessary digital skills, securing and facilitating funding for broadband networks and creating the right environment for the trans-regional and cross-border exchange of online services, which are all factors that can significantly boost the development of good quality services and make for balanced harmonisation of copyright rules;












8.


observes that it has already stressed the contribution that local and regional authorities can make during all stages of data collection and the provision of services to citizens and businesses (2). This can also be seen in practice: in Europe, there are many examples of the inherent potential of cooperation between regions, national authorities and research centres in the area of innovation and the interoperability of the public sector;





Copyright in the digital market









9.


supports the European Commission’s objective to modernise the rules in order to make creative content widely available across the whole of the EU, ensure a high level of protection for right holders and maintain a good balance with other public policy goals (such as education, research and innovation, or public access to public collections, including libraries, archives and museums, and — just as important — ensuring equal access for persons with disabilities) (3) in the digital environment;












10.


calls for the European Commission to include local and regional authorities among the main cultural policy-makers in the EU, recognising their statutory powers, their direct responsibility for managing the cultural heritage and their crucial role in policies to support the creative industries, including EU polices under the Creative Europe and Horizon 2020 programmes;





Ensuring wider access to content across the whole of the EU









11.


agrees that the EU should work gradually towards removing barriers to cross-border access to content and the distribution of works, but at the same time recommends ensuring that this will enable the single market to function in a way that actually allows authors and the cultural industries to expand their audience and economic activities and enhance the global competitiveness of Europe’s creative industries (in accessing international markets but also helping them to withstand international competition);












12.


supports the European Commission’s proposal for a regulation on the ‘portability’ of online content services, which seeks to enable users who have purchased online content or taken out a subscription in their country of origin to access them when they are temporarily present in another Member State;












13.


notes that ‘temporarily present’ should not lead to abuses, which would risk turning the portability of cross-border rights into permanent availability of content protected at EU level. This is why services providers should verify the Member State of residence of their subscribers;












14.


supports the Commission’s commitment to addressing and removing unjustified geo-blocking provided that this does not lead to the abolition of the territorial principle, which would undermine national, regional and local cultural diversity in Europe (4). In this respect, disabling geo-blocking while travelling should be seen as an extension of the concept of territoriality and not as a first step towards its subsequent abolition;












15.


welcomes the Commission’s intention to improve the online cross-border distribution of television and radio programmes in light of the findings of the review of the Satellite and Cable Directive (5), thus recognising the key role that television and radio play in promoting the creative industry and facilitating, wherever possible, the uniform treatment of online and offline distribution channels for the purposes of copyright and related rights;












16.


is receptive to the Commission’s proposal to facilitate a licensing agreement that allows cross-border access to content. This would ensure the flexibility required by consumers on the one hand and, on the other, guarantee fair and transparent remuneration for creators and stakeholders, something that the digital world can and must provide;












17.


underlines the need to further clarify the parameters within which to operate the digitisation of out-of-commerce works and make them available across the EU; calls, in particular, for due consideration of a number of joint recommendations put forward by authors, editors and collective management organisations in the Memorandum of Understanding — Key Principles on the Digitisation and Making Available of Out-of-Commerce Works
 (6): for instance, the applicability of remuneration for right holders that protects their cultural and institutional role;












18.


calls for the vital and ongoing involvement of local and regional authorities in the implementation of the Creative Europe programme and other policy instruments which the Commission intends to use to support European audiovisual media by exploring new funding, production and distribution models (7).





Adapting exceptions to digital and cross-border environments









19.


thinks that it is right to address the issue of exceptions and limitations on condition that any revision of Directive 2001/29/EC is restricted to special cases that do not conflict with normal use. The right balance should be struck, in this context, between the interests of right holders and the interests of consumers;












20.


believes that the application of exceptions should be reasonable and justified in areas of significant public interest: (i) in the field of education, for instance by enabling teachers to use given teaching materials in both paper and digital format; and (ii) for the purpose of making content accessible to people who have a visual impairment by promoting the ratification of the Marrakesh Treaty (8) in Member States;












21.


cautiously welcomes the Commission’s assessment of further exceptions to be presented in 2016 and, in particular, advocates taking another look at (i) text and data mining (TDM): despite the undoubted benefits that this would have for universities and local and national research institutes, there are still doubts about what data may legitimately be mined, the consequences of inappropriate reuse of the data studied and what the risks would be as regards integrity and privacy; and (ii) remote consultation: since despite the importance of adapting the digital infrastructure of libraries, universities, etc., making protected data available in electronic format creates a risk of direct competition with commercial channels. The Committee therefore suggests that any ensuing negative effects could be mitigated, for instance by introducing some form of compensation for right holders as a means of protecting the cultural value represented by their works;












22.


supports EU action to improve the efficient distribution of levies among right holders for the specific purpose of overcoming the current differences in the methods used to impose levies and supports technological solutions that facilitate the transparent distribution of the revenues collected among the various right holders (9).





Achieving a well-functioning marketplace for copyright









23.


shares the growing concern about whether the current EU copyright rules can ensure 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 due primarily to the imbalance in the market power of the parties involved; therefore advocates — in situations where negotiation between the parties is not possible — EU legislative action that creates a favourable environment for all stakeholders, for instance by providing for more contractual guarantees to protect authors and measures that promote transparency;












24.


sees a need to clarify the role of online platforms that use protected content as an essential part of their economic model (10);












25.


also recognises the need to promote the cultural heritage inherent in creative works and the essential role played by their creators, without whom online platforms would have no material on which to base their business;












26.


therefore supports negotiations to safeguard the right balance between the legitimate interests of creators, consumers and intermediaries;












27.


calls on the European Commission also to take due account of the remits of local and regional authorities when seeking ways to enhance the legal certainty, transparency and balance of the system governing the remuneration of authors and performers in the EU.





Providing an effective and balanced enforcement system









28.


supports the European Commission’s commitment to (i) improving the legal framework to ensure compliance with intellectual property rights, including copyright and related rights, by reinforcing the application of provisional and precautionary measures; (ii) promoting codes of conduct at EU level; and (iii) taking action on ‘notice and action’ mechanisms and the ‘take down and stay down’ principle in its comprehensive assessment of online platforms (11);












29.


also advocates introducing measures designed to convert, wherever possible, take down requests into payment for use, in order to create an incentive for right holders to agree to requests that do not significantly undermine the nature of the works in question.





Fostering a long-term vision









30.


agrees with the European Commission’s assertion that copyright will continue to matter to the economy, society and culture in the long term;












31.


agrees that the EU should respond to the need for greater convergence between national copyright systems as content markets become closer and user behaviour further evolves due to rapid technological developments;












32.


considers that, also in the long term, the legal framework for the remuneration of authors, creators and artists needs to be harmonised.





Unleashing the potential of e-commerce









33.


also welcomes the communication on Digital contracts for Europe: Unleashing the potential of e-commerce
 (12) since it seeks to guarantee one of the three main objectives of the digital single market. Local and regional authorities support the initiative to promote better access for consumers and businesses to online goods and services across Europe and advocate the effective integration of all initiatives, including the modernisation of EU copyright rules.





Brussels, 8 April 2016.


The President of the European Committee of the Regions

Markku MARKKULA




(1)  CdR 5960/2013.

(2)  COR 2646/2015.

(3)  In line with the UN Convention on the Rights of Persons with Disabilities, to which the EU is a party.

(4)  See footnote 2.

(5)  Council Directive 93/83/EEC on satellite broadcasting and cable retransmission.

(6)  http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/20110920-mou_en.pdf

(7)  COR 1690/2015.

(8)  The EU signed the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled on 30 April 2014.

(9)  See footnote 2.

(10)  Directive 2000/31/EC.

(11)  https://ec.europa.eu/eusurvey/runner/Platforms.

(12)  COM(2015) 633 final.