COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Promoting a fair, efficient and competitive European copyright-based economy in the Digital Single Market
Date: 2016-09-14
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: Internet, artistic profession, audiovisual industry, copyright, cross-frontier data flow, culture industry, single market, trans-European network, transmission network

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 14.9.2016  COM(2016) 592 final   COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Promoting a fair, efficient and competitive European copyright-based economy in the Digital Single Market  
 
 
1. INTRODUCTION 

The  Commission’s  Digital  Single  Market  (DSM)  Strategy 1 adopted  in  May  2015 
identified digital content as one of the main drivers of growth in the digital economy. It 
highlighted  the  need  for  action  leading  to  wider  online  access  to  content  for  users, 
including  audiovisual,  music,  books  and  other  sectors,  and  to  a  market  and  regulatory 
environment  that  continues  to  be  conducive  to  creativity,  its  sustainable  financing,  and 
cultural diversity.  

A targeted modernisation of EU copyright rules, as a key element in pursuing those DSM 
objectives, was  set out in the Commission's  Communication "Towards  a modern,  more 
European  copyright  framework" 2  of  December  2015.  The  Communication  outlined 
targeted actions and a long-term vision, reflecting the need to advance the single market 
in this area, to update rules in accordance with digital realities, to ensure that European 
creative industries remain competitive and to maintain a good balance between copyright 
and other public policy objectives such as education, research, innovation and the needs 
of persons with disabilities. 
Further to the proposed Regulation on cross-border portability of online content services3 
of  December  2015,  whose  purpose  is  to  allow  EU  residents  to  travel  with  the  digital 
content they have purchased or subscribed to at home, the Commission is now proposing 
a  set  of  legislative  measures  with  three  objectives:  (i)  ensuring  wider  online  access  to 
content  in  the  EU  and  reaching  new  audiences,  (ii)  adapting  certain  exceptions  to  the 
digital  and  cross-border  environment,  and  (iii)  fostering  a  well-functioning  and  fair 
copyright marketplace. Furthermore, the Commission is also working on measures for an 
effective  and  balanced  enforcement  system.  This  is  particularly  important  in  the  fight 
against commercial-scale infringements of copyright.  

As  highlighted  in  the  December  Communication,  the  EU's  copyright  rules  cannot  be 
considered  in  isolation  from  the  broader  set  of  policies,  including  notably  the  Creative 
Europe programme,4 that contribute to the rich cultural output of  Europe and affect the 
environment  for  the  cultural  and  creative  industries,  for  innovation  and  for  cultural 
diversity. 

The  EU  is  home  to,  among  others,  some  of  the  largest  publishing  houses,  a  dynamic 
music industry, and a film sector that receives praise worldwide. In consequence it is a 
global  industrial  and  cultural  leader.  Some  of  its  cultural  and  creative  industries, 
however,  face  particular  competitiveness,  entrepreneurial  and  financing  challenges. 
European  film  productions,  for  example,  would  benefit  from  new  audiences  within  the 
EU  and  beyond.  This  should  have  a  beneficial  impact  on  the  development  of  new 
business  models  and  new  sources  of  revenue,  if  the  main  issues  related  to  the  scale, 
availability and visibility of productions are addressed.  

to  promoting  cultural  and 

In  addition 
the 
professionalisation of the cultural and creative sectors, and providing wider access to 
culture and  creative content, the Creative Europe programme aims to address some of 

linguistic  diversity,  helping 

1  

2  
3  
4  

Commission  Communication  "A  Digital  Single  Market  Strategy  for  Europe",  6  May  2015. 
COM(2015) 192 final. 
COM(2015) 626 final. 
COM(2015) 627 final. 
The  2014-2020  budget  of  the  programme  amounts  to  EUR  1.46  billion.  The  Creative  Europe 
programme includes a sub-programme for Culture and another for MEDIA, in addition to a cross-
sectoral strand. 

2 

 
 
 
                                                 
these  competitiveness  issues,  including  as  regards  access  to  finance  through  a  new 
Guarantee Facility that is already in place with a budget of EUR 121 million.5  

Through  a  combination  of  legislative  and  non-legislative  measures,  the  Commission  is 
proposing  an ambitious  agenda  to  help European  copyright industries to flourish in the 
single market and European authors reach new audiences, while making European works 
widely  accessible  to  European  citizens,  also  across  borders.  This  Communication 
presents 
the  December 
latest  developments  and  state  of  play  following 
Communication. 

the 

2. MEASURES TO ENSURE WIDER ACCESS TO CONTENT ACROSS THE EU 

In  its  December  Communication,  the  Commission  announced  a  gradual  approach  to 
removing the obstacles to cross-border access to content and to the broader circulation of 
works  across  the  EU,  notably  in  light  of  increasingly  widespread  Internet  connections 
and digital technologies. The objective is to increase the availability of works for citizens 
across Europe, provide new distribution channels for creators, promote the cultures of the 
Member States, and bring the EU's common cultural heritage to the fore.  

The  December  Communication  set  out  targeted  actions  to  facilitate  the  online  cross-
border  distribution  of  television  and  radio  programmes,  the  licensing  of  European 
audiovisual works on video-on-demand (VoD) platforms, and the digitisation and wider 
dissemination  of  out-of-commerce  works.  As  also  announced  in  the  December 
Communication, a number of measures undertaken in the context of the Creative Europe 
MEDIA  programme, 6 which  has  been  supporting  the  development,  promotion  and 
distribution of European works for 25 years, are also geared towards the objective of 
a  broader  access  to  European  films  across  the  EU,  in  commercial  channels  and  in 
non-commercial settings. Those measures are presented below, along with the newly 
proposed copyright legislation. 
First, a proposal for a Regulation7 aims at creating favourable conditions for new online 
ways  of  cross-border  distribution  of  television  and  radio  programmes  comparable  to 
those applicable to the more traditional transmissions via satellite and retransmissions via 
cable. The new rules, inspired by those existing in the Satellite and Cable Directive,8 will 
make it simpler and faster to clear the rights that are needed for certain online services 
provided by broadcasters (programmes transmitted online by the broadcasters at the same 
time as their broadcast and their catch-up services), and for re-transmission services via 
means such as IPTV (TV or radio over closed circuit Internet Protocol-based networks). 
These  rules  aim  to  facilitate  the  evolution  of  the  market  and  a  wider  dissemination  of 
European radio and TV productions, which are an important source of information and 
entertainment  for  Europeans.  This  shall,  in  turn,  generate  more  consumer  choice  and 
cultural diversity. 
In  parallel,  the  proposal  for  a  Directive  on  Copyright  in  the  Digital  Single  Market9 
introduces  a  new  negotiation  mechanism  that  will  make  it  easier  to  conclude  licensing 
agreements to make audiovisual works available on VoD platforms. It is part of a broader 

5  

6  
7  

8  
9  

The  Commission  is  also  looking  into  other  sources  of  finance  for  the  sector,  including  equity 
financing and crowdfunding. 
A sub-programme of the Creative Europe programme. 
Proposal for a Regulation of the European Parliament and of the Council laying down rules on the 
exercise of copyright and related rights applicable to certain online transmissions of broadcasting 
organisations and retransmissions of television and radio programmes, COM(2016) 594. 
Directive 93/83/EEC. 
Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital 
Single Market, COM(2016) 593. 

3 

 
                                                 
policy effort to address the multiplicity of factors that lie behind the limited availability 
of  European  audiovisual  works,  notably  films,  across  the  EU.10 Typically  produced  by 
small  production  companies,  European  films  are  significantly  less  widely  distributed 
online  across  the  EU  than  US  films.11 In  territories  where  no  agreements  have  been 
signed  with  local  distributors,  European  citizens  do  not  have  any  possibility  to  access 
such films legally. Licensing issues and related legal and contractual difficulties for the 
exploitation of European audiovisual works on VoD services will also be addressed in a 
structured  stakeholder  dialogue.  This  will  be  promoted  by  the  Commission  and  will 
regularly gather  industry  actors  along the value  chain (producers, authors, sales agents, 
distributors,  broadcasters,  aggregators,  VoD  platforms).  The  dialogue  will  aim  at 
streamlining  licensing  practices  and  facilitating  industry  agreements  leading  to  a  more 
sustained  exploitation  and  wider  availability  of  European  works.  The  Commission  will 
report on the results of the dialogue by end of 2018. 

The Commission  is also encouraging  the development of practical tools that will make 
licensing for exploitation of audiovisual works in multiple territories across the EU easier 
and more efficient. These include the development of licensing hubs, i.e. online tools that 
allow  the  digital  distribution  of  European  works  also  in  countries  where  they  have  not 
been  released  in  cinemas  or  where  there  is  no  national  distributor,  and  the  creation  of 
curated catalogues of audiovisual works from different producers, ready to be offered to 
VoD service providers. Further challenges arise from the fact that no universal system of 
identification is used in the audiovisual sector. Instead, two standard identifiers12 coexist 
on the market and the sector remains hesitant to use them as they are not interoperable. 
This means that licensing activities are burdensome and cannot be easily automated. The 
organisations responsible for the two separate identifiers are presently working with the 
Commission towards full interoperability of their databases and identifiers.13 Finally, the 
Commission will also explore ways to incentivise rights holders to make available works 
receiving  support  for  distribution  through  the  Creative  Europe  MEDIA  programme  in 
territories where no distribution agreement has been signed.  

Measures are also being introduced to address the lack of visibility and linguistic barriers 
that stand in the way of users having access to European works. Subtitling and dubbing 
are key for cross-border distribution of audiovisual works,14 and are financed by both the 
Creative Europe MEDIA programme and other public funds. Through ongoing projects 
under  the  Creative  Europe  MEDIA  programme  and  an  online  repository  tool  to  allow 
easy access to and reuse of existing subtitling and dubbing by operators in the EU, to be 
launched  by  the  end  of  2016,  the  Commission  aims  to  increase  efficiency  in  public 
funding and use of subtitling and dubbing. Online search tools also are efficient gateways 
for consumers to find online legal offerings of films.  The European Union Intellectual 
Property Office is developing a search tool that can work at European level and a toolkit 

10  

11  

12  

13  

14  

On  average,  European  films  only  reach  2.8  EU  Member  States  compared  to  6.8  EU  Member 
States for US films. In cinemas, the gap between European films (2.6) and US films (9.7) is even 
wider  (European  Audiovisual  Observatory,  "How  do  films  circulate  on  VOD  services  and  in 
cinemas in the European Union?", May 2016). 
47%  of  EU  films  released  in  EU  cinemas  between  2005  and  2014  are  available  on  at  least  one 
VoD service (5,046 films out of 10,828), while 87% of US films released in the same period in 
EU  cinemas  are  available  on  at  least  one  VoD  service  (2,404  films  out  of  2,748)  (European 
Audiovisual  Observatory,  "How  do  films  circulate  on  VOD  services  and  in  cinemas  in  the 
European Union?", May 2016). 
The  ISAN  (International  Standard  Audiovisual  Number)  and  EIDR  (Entertainment  Identifier 
Registry). 
By the end of 2016, the Commission will also propose the use of a common standard identifier as 
a requirement for the support through the MEDIA programme. 
For some audiovisual works, global platforms require a minimum number of language versions. 

4 

 
                                                 
for  the  creation  of  national  search  tools,  which  will  be  fully  operational  by  2017  and 
available to Member States free of charge. The Commission will also promote the use of 
data and automated tools for content recommendation, catering for broader interest and 
taste, in view of developing and enlarging audiences for European works. More widely, 
promoting the discoverability of European films is an important challenge on which the 
Commission  has  ongoing  discussions  with  the  European  Film  Agency  Directors 
Association (EFADs) and the film industry. Given the potential of films produced as co-
productions  to  travel  across  Europe  and  beyond, 15  the  Commission,  together  with 
EFADs,  will  explore,  in  2017,  the  development  of  joint  promotion  strategies  for 
European co-productions. All these measures complement the recently adopted proposal 
to  amend  the  Audiovisual  Media  Services  Directive,16 which  introduces  a  reinforced 
requirement to promote European works in VoD services, by ensuring their presence and 
visibility. 

Furthermore,  the  Commission  is  working  on  ways  to  explore  alternative  models  of 
financing, production and distribution that have the single market and global markets as 
their  horizon  from  the  outset.  In  this  respect,  the  Commission  will  place  a  particular 
focus on the European animation sector. Story-telling is of particular importance in this 
sector and works travel across borders more easily. Producers of animation tend to work 
on  different  projects  at  the  same  time  for  television  and  film  and  may  also  co-operate 
with  other  studios  on  separate  projects.  In  parallel  with  the  current  support  of  the 
Creative Europe MEDIA Programme, the Commission will launch before the end of this 
year a dialogue with the major European animation studios to discuss how the sector can 
scale up. It should also identify the specific needs of the sector across a range of issues 
from reducing brain drain to helping animation films and television animation to travel 
even better. The aim of this dialogue would be to agree a joint action plan for the sector 
by mid-2017. 

Finally,  the  proposal  for  a  Directive  on  Copyright  in  the  Digital  Single  Market 17 
introduces  solutions  for  easier  licensing  of  rights  by  cultural  heritage  institutions  as 
required  for  the  digitisation  and  dissemination  of  works  that  are  out-of-commerce  but 
hold  great  cultural  value.  Access  to  works  in  non-commercial  settings  e.g.  educational 
organisations, public libraries, non-theatrical venues is also very important for nurturing 
cultural  diversity,  educational  purposes,  and  participation  in  society.  Such  channels, 
along  with  improved  media  literacy,  can  play  a  key  role  in  promoting  and  creating  a 
sustainable  audience  for  European  works.  Furthermore,  the  Commission  is  exploring 
together  with  EFADs  and  the  audiovisual  industry  creating  and  funding  in  2017  a 
catalogue  of  European  films  for  educational  purposes.  This  would  be  a  useful  pilot 
project to present the diversity and quality of European films to young audiences. 

15  

16  

17  

According to a recent report by European Audiovisual Observatory ("How do films circulate on 
VOD  services  and  in  cinemas  in  the  European  Union?",  May  2016),  co-productions  circulate 
better than average European films. European films are in average available in 2.8 countries while 
European co-productions are available in 3.6 countries.  
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  amending  Directive 
2010/13/EU  on  the  coordination  of  certain  provisions  laid  down  by  law,  regulation  or 
administrative action in member States concerning the provision of audiovisual media services in 
view of changing market realities, COM(2016) 287 final. 
Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital 
Single Market, COM(2016) 593. 

5 

 
 
 
 
                                                 
3. MEASURES TO ADAPT EXCEPTIONS TO DIGITAL AND CROSS-BORDER ENVIRONMENTS 

Copyright exceptions allow, for specific purposes and under specific conditions, the use 
of  protected  works  without  the  authorisation  of  right  holders.  They  respond  to  public 
policy  objectives  at  EU  level  and  play  an  important  role  in  the  broader  copyright 
framework. However, at present, most exceptions in EU law are optional and do not have 
cross-border effect. Furthermore, some of them need to be re-assessed in light of today's 
technological  realities,  increasing  the  level  of  harmonisation  where  needed  while  not 
affecting well-functioning systems at national level.  

The  legislative  measures  proposed  today  bring  the  EU  framework  on  exceptions  up  to 
speed  with  digital  uses,  in  certain  key  areas  like  education,  research  and  access  to 
knowledge and are particularly focused on cross-border uses, thus contributing to further 
deepening the  single  market.    The proposal  for  a  Directive  on  Copyright  in  the  Digital 
Single Market18 introduces new mandatory exceptions in the areas of education, research, 
and preservation of cultural heritage.  

A new exception on illustration for teaching will provide full legal certainty for the use 
of protected content in digitally-supported and online teaching activities, including across 
borders. This will benefit new modes of providing education, notably distance learning, 
and student and teacher mobility across the EU.  

The proposal also introduces a new mandatory exception for text and data mining carried 
out  for  the  purposes  of  scientific  research.  The  exception  will  allow  research 
organisations  to  use  text  and  data  mining  technologies  in  full  legal  certainty.  A 
mandatory  exception  in  this  area  will  prevent  different  approaches  being  followed  in 
different  Member  States  in  an  area,  like  research,  where  cross-border  cooperation  on  a 
large  scale  and  cross-discipline  collaboration  is  more  and  more  frequent.  This  will 
support scientific advancement and innovation in the EU. 

The proposed Directive also includes a new mandatory exception for digital preservation 
by cultural heritage institutions, which takes into account the needs of content in digital 
forms and the use of digital technology in preservation. It reflects the use of digitisation 
as a preservation technique but also the increased number of 'born-digital' works in the 
collection of cultural heritage institutions. Increased preservation rates will be beneficial 
for the survival of cultural heritage and allow citizens to engage with it for longer. 

In  parallel,  two  legislative  proposals19 are  adopted  today  for  the  implementation  in  EU 
law of the Marrakesh Treaty,20 which requires parties to introduce exceptions supporting 
people with print disabilities to access books and other print material in formats that are 
accessible to them. The proposal for a Directive will establish a mandatory exception and 

18  

19  

20  

Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital 
Single Market, COM(2016) 593. 
Proposal for a Directive of the European Parliament and of the Council on certain permitted uses 
of  works  and  other  subject-matter  protected  by  copyright  and  related  rights  for  the  benefit  of 
persons  who  are  blind,  visually  impaired  or  otherwise  print  disabled  and  amending  Directive 
2001/29/EC  on  the  harmonisation  of  certain  aspects  of  copyright  and  related  rights  in  the 
information society, COM(2016) 596, and Proposal for a Regulation of the European Parliament 
and  of  the  Council  on  the  cross-border  exchange  between  the  Union  and  third  countries  of 
accessible  format  copies  of  certain  works  and  other  subject-matter  protected  by  copyright  and 
related  rights  for  the  benefit  of  persons  who  are  blind,  visually  impaired  or  otherwise  print 
disabled, COM(2016) 595. 
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.  

6 

 
 
                                                 
ensure  its  functioning  for  the  making  and  exchange  of  such  accessible  format  copies 
within  the  single  market.  The  proposal  for  a  Regulation  will  permit  the  cross-border 
exchange of such copies between the EU and third countries that are parties to the Treaty. 

The Commission will continue to assess a number of other issues related to exceptions 
identified  in  the  December  Communication.  Some  of  these  issues  may  need  to  be 
reconsidered, at a later stage, in light of the outcome of cases currently pending before 
the Court of Justice of the EU. This includes the exception authorising libraries and other 
institutions  to  allow  on-screen  consultation  of  works  for  research  and  private  study  on 
their premises.21  

Following up on the analysis of the results of the public consultation on the ʻpanorama 
exceptionʼ,22 which allows people to take and upload pictures of works like buildings or 
sculptures  located  in  public  spaces,  the  Commission  confirms  the  relevance  of  this 
exception. Under EU  legislation, Member States enjoy a large margin  of manoeuvre to 
lay down such exceptions. Nearly all Member States have a panorama exception in their 
national  legislation.  Recently,  Member  States  that  had  not  previously  done  so  have 
introduced this exception in their laws or are discussing draft measures to this end. The 
Commission will continue monitoring these developments and strongly recommends that 
all Member States implement this exception.  

4. MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE FOR COPYRIGHT 

In  recent  years,  the  internet  has  become  the  main  marketplace  for  accessing  and 
distributing copyright-protected content. Online services now represent a major source of 
revenue for works  and  other protected  content and are expected to continue to grow in 
importance. There is however a growing concern about the equitable sharing of the value 
generated by some of the new forms of online content distribution along the value chain. 
Right  holders  report  difficulties  faced  when  seeking  to  authorise  and  be  fairly 
remunerated  for  the  use  of  their  content  online.  This  situation  could  also  put  service 
providers engaging in equivalent forms of distribution at a disadvantage.  Linked to this, 
but  also  affecting  offline  forms  of  exploitation,  there  is  the  question  of  the  fair 
remuneration of authors and performers and of the difference in bargaining power when 
they license or transfer their rights. 

These difficulties undermine the objective that the Digital Single Market delivers a fair 
return on investment for all. These issues are vital across the cultural and creative sectors, 
including  publishing,  images,  music  and  audiovisual.  Further  to  the  December 
Communication,  the  need  to  address  them  was  confirmed  in  the  Communication  on 
online platforms of May 2016.23  

The proposal for a Directive on Copyright in the Digital Single Market24 will give press 
publishers legal certainty and put them in a better negotiating position in their contractual 
relations with online services using and enabling access to their content. It will do so by 
providing a new related right that recognises the key role press publishers play in terms 
of investments in and overall contribution to the creation of quality journalistic content, 

21  
22  

23  

24  

https://ec.europa.eu/digital-single-market/en/news/public-consultation-role-publishers-

Case C-174/15. Vereniging Openbare Bibliotheken vs Stichting Leenrecht. 
See 
copyright-value-chain-and-panorama-exception. 
Communication on Online Platforms and the Digital Single Market Opportunities and Challenges 
for Europe, COM(2016) 288 final. 
Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital 
Single Market, COM(2016) 593. 

7 

 
 
                                                 
and  will  grant  them  the  protection  they  need  for  the  effective  exploitation  of  their 
publications  in  the  digital  environment.  The  proposal  will  also  establish  the  possibility 
for  Member  States  to  have  systems  where  publishers  (including  book  and  scientific 
publishers)  may  have  a  share  in  compensation  mechanisms  such  as  those  foreseen  for 
private copying or reprography. 

The  proposal  will  also  reinforce  the  position  of  right  holders  to  negotiate  and  be 
remunerated  for  the  online  exploitation  of  their  content  by  online  services  storing  and 
giving access to content uploaded by their users. Given the role played by these services 
in  the  communication  of  protected  content,  the  proposal  will  request  service  providers 
that store and provide access to large amounts of works to take, in cooperation with right 
holders, appropriate and proportionate measures, including based on content recognition 
technology,  to  ensure  the  functioning  of  agreements  with  right  holders.  In  this  area, 
active cooperation between stakeholders will also be important. Consumers will continue 
to be able to both upload their content and enjoy a large content offer in a fairer and more 
legally secure environment. 

Finally,  authors  and  performers  will  benefit  from  increased  transparency  on  the 
exploitation  of  their  works  and  performances  and  from  improved  capability  to  receive 
appropriate  remuneration.  This  should  lead  to  a  better  functioning  framework  for  all 
players through legal clarity for those acquiring the rights and higher trust for authors and 
performers,  including  in  the  online  environment.  The  effective  deployment  of  these 
measures will require from Member States the organisation of sector specific discussions 
to  define  in  practice  the  appropriate  transparency  obligations  per  type  of  content  and 
industry. The Commission will closely follow this work at Member State level to ensure 
the efficiency and coherence of the results. The Commission will also continue to engage 
with all interested parties from the cultural and creative sectors, through general or sector 
specific  dialogues,  to  discuss  developments  around  this  issue  and  the  need  for  further 
action.  

Overall, these measures will contribute to a copyright marketplace that works efficiently 
for all parties, gives the right incentives for investment in, and dissemination of, creative 
content in the online environment, and upholds the importance of a free and diverse press 
in the EU. 

5. MEASURES TO PROVIDE AN EFFECTIVE AND BALANCED ENFORCEMENT SYSTEM 

Copyright infringements on a commercial scale, with infringers free-riding on the work 
and  investment  of  others,  are  today  a  serious  threat  for  European  creators,  preventing 
them  from  deriving  a  legitimate  profit  from  their  creation  and  thus  ultimately 
discouraging  creativity  and  innovation.  Without  an  effective  and  balanced  enforcement 
system  copyright  and  other  intellectual  property  rights  (IPR)  are  ill-protected  and 
investment in creativity and innovation is throttled. Following the announcement in the 
December Communication, the Commission is carrying out an evaluation of the overall 
functioning  of  the  current  legal  framework  for  enforcement  of  IPR,  as  part  of  a  wider 
initiative aiming to enhance the protection of all IPR and focusing on commercial-scale 
infringements.  

The  contributions  to  a  public  consultation  on  the  evaluation  and  modernisation  of  the 
legal  framework  for  the  enforcement  of  IPR,25 launched  in  support  of  the  evaluation, 
confirmed  that  the infringement  of  IPR,  including copyright, is a major problem. More 

25  

See http://ec.europa.eu/growth/industry/intellectual-property/enforcement/. 

8 

 
                                                 
than  three  quarters  of  the  responding  right  holders  and  public  authorities  observed  that 
IPR  infringements  have  increased  over  the  last  10  years.  While  the  majority  of 
respondents  felt  that  the  existing  rules  have  helped  effectively  in  protecting  IP  and 
preventing IP infringements, many right holders and intermediaries in particular consider 
that the measures and remedies provided for by the IPR enforcement directive26 are not 
applied  in  a  homogeneous  manner  across  the  Member  States.  This  could  result  in 
different level of protection in the Member States and suggests that the IPR enforcement 
directive did not fully eliminate the disparities at national level as regards the means of 
enforcing IPR. A significant number of respondents also identified a need to adjust some 
of these measures, in order to ensure legal certainty and enhance their effectiveness, such 
as  the  issuing  of  provisional  and  precautionary  measures  and  injunctions  against 
intermediary  service  providers  or  the  calculation  of  appropriate  damages.  The 
cumbersome  procedure  for  obtaining  provisional  and  precautionary  measures  or 
injunctions  for  the  same  infringements  against  similar  addressees  in  more  than  one 
jurisdiction in the EU is another issue particularly raised by copyright holders.  

Following the evaluation the Commission will propose any amendments necessary to the 
legislative framework which help improving the legal enforcement framework for all IPR 
infringements,  including  copyright  infringements,  a  clarification  of  the  scope  and 
application of provisional and precautionary measures and injunctions, as well as of the 
rules  for  the  calculation  and  allocation  of  damages.  The  Commission  will  also  explore 
possibilities  to  facilitate  the  issuing  of  provisional  and  precautionary  measures  or 
injunctions  for  the  same  infringements  against  similar  addressees  in  more  than  one 
jurisdiction in the EU.  

The fast developing  digital environment and  technology, however, also  require that the 
measures, procedures and remedies provided for by the IPR enforcement directive can be 
applied  and  issued  by  the  competent  national  courts  without  undue  delay.  This  is 
particularly relevant to protect works and other protected subject matter. Member States 
need to ensure that their judicial systems have the necessary capacity to respond to the 
need  for  fast  and  effective  protection  of  IPR,  in  particular  on  the  internet.  The 
Commission will furthermore assess incentives to promote the specialisation of national 
judges in matters of infringement and validity of IPR, considering the positive experience 
reported from those Member States which already have such specialised judges.  

The  December  Communication  also  stated  that  "the  Commission  will  take  immediate 
action  to  engage,  with  all  parties  concerned,  in  setting  up  and  applying  ‘follow-the-
money’  mechanisms  in  a  self-regulatory  approach".27 Based  on  the  positive  experience 
with  the  existing  and  recently  upgraded  Memorandum  of  Understanding  on  the  online 
sale  of  counterfeit  goods28 the  Commission  has  endorsed  the  conclusion  of  voluntary 
cooperation  agreements  involving  other  types  of  intermediary  service  providers  in  the 
protection  of  IPR, 29  including  online  advertising,  payments  and  shipping  services 

26  

27  

28  
29  

Directive  2004/48/EC  of  the  European  Parliament  and  of  the  Council  of  29  April  2004  on  the 
enforcement of intellectual property rights. 
A  commercial  scale  IPR  infringing  scheme  will  consist  of  paying  for  services  to  produce, 
distribute  or  promote  IP  infringing  goods  and  services  as  well  as  generating  revenues  from  the 
promotion  and  sale  of  such  goods  and  services.  The  "follow  the  money"  approach  involves 
different  types  of  intermediary  service  providers  in  the  protection  of  IPR  by  designing  policy 
measures that identify and seek to disrupt the revenue stream for the infringing activity.  
http://ec.europa.eu/DocsRoom/documents/18023/ 
Commission  Declaration  on  the  facilitation  and  monitoring  of  memoranda  of  understanding 
seeking  to  dissuade  commercial  scale  intellectual  property  infringing  activities  in  the  internal 
market: http://ec.europa.eu/DocsRoom/documents/18023/  

9 

 
                                                 
providers.  Online  advertising  is  a  major  source  of  income  for  copyright  infringing 
internet  sites.  The  purpose  of  the  initiative  related  to  advertising  is  to  dissuade  the 
placement of advertising on commercial scale IP infringing websites, thereby preventing 
the  funding  of  IPR  infringement  through  advertising  revenue.  To  the  extent  that 
copyright  infringing  websites  offer  so-called  premium  or  subscription  models,  giving 
faster access to content against payment, payment service providers can play a key role 
in implementing the 'follow the money' principle, intercepting financial transactions and 
eventually  withdrawing  their  services  and  in  so  doing  rendering  these  businesses 
unprofitable. The Commission is fully committed to achieving concrete results in these 
processes,  crucial  to  combat  piracy,  and  expects  that  the  widest  possible  range  of 
stakeholders  will  join  them,  building  on  similar  agreements  in  place  at  national  level. 
Depending  on  the  progress  of  these  initiatives  the  Commission  will  also  explore  other 
options to strengthen the involvement of intermediary service providers in the protection 
of IPR, such as liability of intermediaries in cases where the intermediary is aware that its 
services are used by a third party to infringe an IPR but fails to act. 

6. CONCLUSION 

The  cultural  and  creative  industries  are  important  for  Europe  in  many  different  ways. 
They  constitute a  significant  economic sector but are also a primary source of learning 
and  entertainment  and  are  crucial  to  maintaining  and  nurturing  Europe's  cultural 
diversity.  The  ability  of  the  European  copyright  industries  to  innovate  in  the  digital 
environment is a prerequisite for their success and their ability to compete globally.  

A  well-designed  copyright  framework  and  supporting  measures  are  therefore  essential 
for  authors,  performers  and  the  cultural  and  creative  sectors  so  they  can  reach  out  to 
larger  audiences  and  ultimately  provide  more  choices  to  citizens.  The  Commission  is 
implementing an ambitious agenda that both modernises the EU copyright framework for 
the  benefit  of  all  stakeholders  and  supports  the  availability  and  visibility  of  European 
cultural  and  creative  content,  including  across  borders.  The  legislative  initiatives  and 
financial  support  measures  are  mutually  supportive  and  reinforcing.  The  Commission 
will monitor the impact of these measures and follow-up on the efforts made by industry 
to integrate the objectives set out above in their business models.  

10