Since my previous post on the leaked version of the Commission communication, not much has changed in the final version of the communication on a modern, more European copyright framework adopted on 9 December 2015. The final goal is still the full harmonisation of copyright in the form of a single copyright title, in spite of it being purely unrealistic taking into account European cultures, and the road to it is cross-border access for all types of content across Europe. The language still reflects a very ideological vision of what the EU is about and its role in the copyright field.
This is in sharp contrast with the concrete actions proposed: while the text suggests a revolution is needed, the Commission only tables a proposal for a regulation on cross-border portability and quite limited additional steps for 2016 and beyond in the form of a review of the Satellite and Cable Directive taking into account the results of the public consultation which closed on 16 November 2015, leveraging the Creative Europe programme, adapting some of the exceptions in the field of education and research, ‘follow-the-money’ mechanisms and a new public consultation on the IPR enforcement Directive, as well as future measures to ensure fair remuneration to authors for the use of their works online.
This contrast is both worrying (is the Commission schizophrenic or trying to hide its real nature?) and encouraging: having revolutionary rhetoric but reasonable actions is better than the other way around. It might also show the evolution from the martial declarations on broken copyright to concrete actions which do not challenge the main features of the copyright system. We at the SAA have decided to recognize and value the evolution in the Commission’s position even if there seems to be a little way still to go. It does not mean that we agree with the full plan – we made some important reservations in our press release – but we want to be constructive partners: partners who do not hesitate to express concerns and disagreements, but partners who are committed to the dialogue and are result-oriented.
As regular readers of our blog will know, our main focus is the authors’ remuneration for the exploitation of their works online. We are happy to see that this issue is included in the communication as part of the section on a well-functioning marketplace and the sharing of the value of the online distribution of works among the various market players and rightholders. Action is foreseen by Spring 2016. The communication is quite detailed on the issues around the definition of the ‘right of communication to the public’ and on the relationship with the liability exemptions of the E-Commerce Directive used by some platforms to claim their non-engagement in copyright-relevant acts. It is less developed on the lack of bargaining power of authors and performers when licensing or transferring their rights. The communication mentions different mechanisms proposed by stakeholders to solve the problem: “regulation of certain contractual practices, unwaivable remuneration rights, collective bargaining and collective management of rights”, but does not make any choice on the most relevant mechanism or the most efficient combination of them.
This is fine at the stage of the communication adopted on 9 December 2015 as no concrete and in-depth discussion have really started yet. ‘Fair remuneration’ was not on the agenda of the Commission when they entered into office. At political level they did not even know there was a problem. The issue has been pushed by a handful of authors’ organisations, including the SAA, who have succeeded in transforming their political plea into a commitment for action by the Commission enacted in the communication.
The real work starts now. The discussion on ‘fair remuneration’, like the one on platforms (public consultation), is multi-faceted and raises different challenges depending on the cultural sector. Authors’ needs vary depending on whether they are working in the music, book or audiovisual sectors because the sectors are organized in different ways and make different use of copyright rules. This will be the main challenge of this work stream if it is to deliver relevant and efficient measures by Spring 2016 to ensure authors receive remuneration for the use of their works online. SAA has made proposals for the audiovisual sector and is committed to promoting them constructively in any forum the Commission puts in place, to avoid such eagerly awaited action fizzling out.