Since the beginning of this new Commission a year ago, copyright has been a contentious issue. President Juncker asked his new team to break down national silos. VP Ansip declared his hate for geoblocking. European creators were surprised, asking themselves how their authors’ rights, the foundation of their professional activities, could be such a problem for Europe. They realised that once again, new politicians had spoken before analysing the situation. Authors therefore took it upon themselves to explain again the role of authors’ rights and copyright in the cultural and creative industries: what it does and what it is not responsible for.
After a number of high level meetings, film forum discussions, letters, statements and contact with the Commissioners’ cabinets, they believed that the danger was over and that the new Commission had understood the main features and challenges of the creative and cultural sectors, in particular the audiovisual industry. They were told that nobody would impose pan-European licences, that the role of territorial licensing of rights in the financing and distribution of audiovisual works was understood, that fair remuneration for creators was a must.
And last week the draft communication on a modern, more European copyright framework to be adopted on 9 December and designing the action of the Commission on copyright for next year was leaked. Creators bitterly discovered another story: the final goal of the Commission is still the full harmonisation of copyright in the EU, in the form of a single copyright code and a single copyright title, like in trademarks and patents, regardless of the particularities of authors’ rights and copyright and its links with culture. The Commission considers that the ultimate goal is the full cross-border access for all types of content across Europe to deliver more choice and more diversity to people. Territoriality of copyright is back as the main obstacle.
Imposing cross-border portability of content and services is a first step according to the leaked draft communication. Before this document leaked, the Commission was still assuring stakeholders that portability is not cross-border access; it will be limited to subscribers who temporarily travel outside their country of residence and services will be free to put in place authentication processes. Rightholders will be keener than ever to hear Commission guarantees that portability will not be used to circumvent territoriality.
The Commission’s second possible legislative initiative towards cross border access could come in spring 2016 with the extension of some of the provisions of the Satellite and Cable Directive to broadcasters’ online transmissions. While we consider that the Directive’s most interesting provisions lie in its cable retransmission chapter which ensures the pan-European delivery of broadcasters’ signals through cable operators with collective management solutions, it seems that the Commission is more interested in the country of origin mechanism of the direct satellite broadcasting to be extended to online transmissions. This would heavily question the territoriality principle again.
Is there anything in this draft communication to balance these attacks against the territoriality of rights? Any vision of how creators will make a living in a full digital and online environment? Apart from some already heard promises on the fight against piracy and follow the money mechanisms as well as discussions around the sharing of value created by new forms of online distribution of protected works, there is little for creators in this action plan.
The issue of authors’ fair remuneration, born of the fact that authors are barely remunerated for the online use of their works, in particular in the audiovisual sector, is only developed very briefly and no clear commitment for action is indicated. To compound it all, on top of targeting territoriality and not promising any concrete action on remuneration, the communication goes on to attack a source of revenue of creators, private copying levies.
We still believe the objective of wider availability of European works is a laudable goal, we cannot repeat it enough, screenwriters and directors are the first to be frustrated when people cannot watch the works they have created. However, this availability needs to be sustainable, this means effective financing of production and active distribution and promotion, fair remuneration for authors based on the exploitation of the works, and compensation when authors are deprived of their exclusive rights by exceptions. All this will not be achieved by getting rid of territoriality, quite the contrary.