News Archive 2014
October 2014: European Commission, Copyright, and the Justice Minister
After years of inaction, preparations are now being made in both Brussels and Berlin to modernise copyright legislation. Given that there are no easy solutions, lots of complicated issues, and plenty of possibilities to upset a number of interest groups, politicians have come to see the area as something of a minefield. Being responsible for copyright is therefore by no means an easy job, and over the coming years, this challenge will fall to two Germans: Günther Oettinger, the new European Commissioner for the Digital Economy, and Heiko Maas, the German Federal Minister of Justice.
Maas has already had several months to become familiar with copyright issues and to produce a roadmap for updating legislation; by the same token, he is well aware that major reforms cannot be implemented in Germany without reference to the myriad of international agreements and membership of the EU which so strongly limit the national scope for action – and there are good reasons for this. While it may be at its core a national issue, if it is to work well in a globalised world, copyright ought not to vary too greatly between countries.
Yet Germany must be sure to place the emphasis on the right questions, and the Federal Ministry of Justice has set itself four focal points to be tackled in the coming months:
1. Implementing the EU directive on collecting societies
During the summer, individual interest groups were asked how they thought opportunities to influence policy ought to be used. In addition to their written responses, the German collecting societies will be hosting a parliamentary evening on this issue in Berlin at the beginning of November.
2. Revising the rules for private copies
The big reform of 2008 has, by and large, not led to a satisfactory solution, but rather left a lot of unfinished business. For this reason, further improvements were written into the German Grand Coalition agreement; rightholders are demanding an accelerated procedure for setting the level of fees levied on hardware and storage media.
3. Copyright contract law
This area was comprehensively reformed back in 2002, yet here too, the application of the reforms has revealed practical weaknesses that the Ministry of Justice is now looking to examine and rectify. Above all, the procedures set for negotiating remuneration rules between associations and users are not working properly in practice.
4. Single rule for academia
The current set of copyright exceptions for research and teaching at schools and universities is a colourful patchwork and Justice Minister Maas has announced that he will attempt to unify these exceptions by producing one single set of regulations for this area.
It is plain to see that Berlin will be placing the emphasis on remedying the defects of past reforms; in Brussels, by contrast, the focus will be on making copyright fit for the digital age.
Change in Brussels
Copyright has thus far fallen under the responsibility of Commissioner Michel Barnier in the Internal Market Department. Digital Commissioner Neelie Kroes, in contrast, would have preferred to eliminate it altogether. An end to this paralysis is now expected in the new Commission. President Jean-Claude Juncker is realigning departmental responsibilities and has assigned copyright to the Directorate of Digital Economy and Society, i.e. Neelie Kroes’ former department. The conflict between the digital and creative economies must now be waged in one and the same department.
Günther Oettinger will head it. The former Minister-President of Baden-Württemberg was responsible for the Energy Department in the previous Commission and is therefore considered an experienced politician in Brussels. On September 29th, he responded to questions from EU Parliament members, and was asked to describe his vision for the Digital Department. Creative artists can be satisfied with the outlook he provided.
Oettinger is considered industry-oriented and will also be responsible for network expansion in his new position. One could speculate that he might be using copyright concessions to buy the goodwill of major telecommunications companies and service providers, but that is unlikely. Oettinger made one thing clear during his hearing: Europe thrives on its culture, its cultural differences and particularities. Although his predecessor made every effort to champion the United States as a great example to follow, there will be no digital melting pot on his watch. Oettinger will also take seriously the principle of subsidiarity. Brussels regulates only what must be controlled at European level. The rest remains with individual countries.
He announced that he will present a reform agenda within his first two years in office, which he wants to preface with an intensive discussion with all stakeholder groups. That also says something for him and his method of operating. He wants to survey the copyright “minefield” himself and not embrace solutions prepared for him by others.
Due to the new structure of the European Commission, he will have to coordinate his activities with Vice-President Andrus Ansip from Estonia who answered questions at the EU Parliament on October 6th. Ansip is considered well versed in matters of digitisation. As long-time Prime Minister of Estonia, he made a decisive contribution to the small country’s current pioneering reputation.
The topics underscored by Ansip to the parliament members are those that affect us as citizens: Trust in security and data protection are critical to making the next leap forward in digitisation and, for example, further expanding e-government and digital education in schools. A staunch European, Ansip also emphasized the importance of continuing the elimination of national borders when it comes to online trade. It must become easier and cheaper for postal service providers to transport goods from country to country, and digital services must not be halted at national borders.
Oktober 2014: EU-Kommission, Urheberrecht und der Justizminister
Nach vielen Jahren des Stillstands bereitet man sich sowohl in Brüssel, als auch in Berlin darauf vor, das Urheberrecht zu modernisieren. Das Thema gilt bei Politikern mittlerweile als Minenfeld: Es gibt keine Patentrezepte, die Materie ist kompliziert und man kann ziemlich schnell mit vielen Interessengruppen über Kreuz liegen. Kein dankbarer Job also, wenn man die Verantwortung für das Thema trägt. Mit Günther Oettinger als neuem EU-Kommissar für die Digitale Wirtschaft sowie mit Bundesjustizminister Heiko Maas werden zwei Deutsche in den kommenden Jahren diese Verantwortung tragen.
Heiko Maas hatte schon mehrere Monate Zeit, sich in das Urheberrecht einzuarbeiten und einen Fahrplan für dessen Modernisierung aufzustellen. Dabei ist ihm klar, dass man in Deutschland keine großen Reformen im Alleingang umsetzen kann. Zu stark ist unser Land mittlerweile durch internationale Verträge und durch die Mitgliedschaft in der EU in der Gestaltungsfreiheit beschränkt; was auch seine Richtigkeit hat. Zwar im Kern national, sollte das Urheberrecht in einer globalisierten Welt von Land zu Land keine allzu großen Unterschiede aufweisen, um gut zu funktionieren.
Deutschland sollte trotzdem national die richtigen Akzente setzen. Das Bundesjustizministerium hat sich vier Schwerpunkte verordnet, die in den kommenden Monaten angepackt werden sollen:
1. Umsetzung der Richtlinie zu Verwertungsgesellschaften
Im Sommer wurden die einzelnen Interessengruppen dazu befragt, wie die Gestaltungsspielräume genutzt werden sollten. Neben ihren schriftlichen Eingaben werden die deutschen Verwertungsgesellschaften zu diesem Thema Anfang November einen parlamentarischen Abend in Berlin veranstalten.
2. Revision der Regeln zur Privatkopie
Die große Reform aus dem Jahr 2008 hat in weiten Teilen keine Befriedung bewirkt, sondern eine Großbaustelle hinterlassen. Die Große Koalition hat deshalb bereits im Koalitionsvertrag festgelegt, dass Nachbesserungen erfolgen sollen. Die Rechteinhaber fordern eine Beschleunigung der Verfahren zur Festlegung der Abgabesätze auf Geräte und Speichermedien.
Hier gab es bereits 2002 eine umfassende Reform. Auch diese weist in der Praxis Schwächen auf, die das Justizministerium nun prüfen und beseitigen will. Insbesondere die Verfahrensregeln zu Verhandlungen von Vergütungsregeln zwischen Verbänden und Nutzern funktionieren in der Praxis nicht.
4. Allgemeine Wissenschaftsschranke
Die bestehenden Ausnahmeregelungen im Urheberrecht zugunsten von Forschung und Lehre an Schulen und Hochschulen bilden einen Flickenteppich. Justizminister Maas hat sich vorgenommen, diesen zu beseitigen und stattdessen ein Regelwerk aus einem Guss zu erarbeiten.
Wie man sieht, wird Berlin den Fokus darauf setzen, die Reformen der Vergangenheit zu reparieren. Anders in Brüssel: dort geht es darum, das Urheberrecht für die digitale Zeit fit zu machen.
Wechsel in Brüssel
Bislang war das Urheberrecht im Binnenmarktressort angesiedelt und wurde von Kommissar Michel Barnier verantwortet. Die Digitalkommissarin Neelie Kroes dagegen hätte es wohl am liebsten abgeschafft. In der neuen Kommission soll diese Lähmung nun beseitigt werden: Kommissionspräsident Jean-Claude Juncker ordnet die Ressortzuständigkeiten neu und ordnet das Urheberrecht der Direktion Digitale Wirtschaft und Gesellschaft zu; also dem ehemaligen Ressort von Neelie Kroes. Damit muss der Konflikt zwischen Digital- und Kreativwirtschaft nun in ein und demselben Ressort ausgetragen werden.
Günther Oettinger ist dafür verantwortlich. Der ehemalige baden-württembergische Ministerpräsident hat in der letzten Kommission das Energieressort verantwortet und gilt deshalb in Brüssel als erfahrener Politiker. Am 29. September stellte er sich den Fragen der Abgeordneten des Europäischen Parlaments und musste seine Vision für das Digitalressort darlegen. Mit dem Ausblick, den er gegeben hatte, können die Kreativen zufrieden sein.
Oettinger gilt zwar als industrienah und in seiner neuen Position verantwortet er zusätzlich das Thema Netzausbau. Man könnte also spekulieren, dass er sich das Wohlwollen der großen Telekommunikationskonzerne und Service Provider mit Zugeständnissen beim Urheberrecht erkauft; wahrscheinlich ist das aber nicht. Oettinger hat während seiner Anhörung eines klar gemacht: Europa lebt von seiner Kultur, seinen kulturellen Unterschieden und Besonderheiten. Einen digitalen Einheitsbrei wird es mit ihm nicht geben; da mag seine Vorgängerin noch so sehr das große Vorbild USA an die Wand projiziert haben. Oettinger wird auch das Subsidiaritätsprinzip ernst nehmen – Brüssel regelt nur, was auf europäischer Ebene geregelt werden muss. Der Rest bleibt Ländersache.
Er kündigte an, eine Reformagenda innerhalb der ersten zwei Jahre vorzulegen und vorher eine intensive Diskussion mit allen beteiligten Gruppen führen zu wollen. Auch das spricht für ihn und seine Arbeitsweise: Er will das „Minenfeld“ Urheberrecht selber vermessen und sich nicht Lösungen zu eigen machen, die ihm andere vorbereitet haben.
Aufgrund der neuen Struktur der EU-Kommission wird er sich bei seiner Tätigkeit mit Vizepräsident Andrus Ansip aus Estland abstimmen müssen, der am 6. Oktober vor dem Europäischen Parlament Rede und Antwort stand. Ansip gilt als versiert in Sachen Digitalisierung. Als langjähriger Ministerpräsident von Estland hat er entscheidend dazu beigetragen, dass dieses kleine Land mittlerweile als Vorreiter gilt.
Die Themen, die Ansip vor den Abgeordneten hervorhob, sind die Themen, die uns Bürger angehen: Vertrauen in die Sicherheit und in den Datenschutz sei entscheidend, damit die Digitalisierung einen weiteren Sprung nach vorne machen kann und sich beispielsweise das e-Government oder die Vermittlung digitaler Fähigkeiten in den Schulen weiter ausbauen lässt. Außerdem – ganz der Europäer – betonte Ansip die Notwendigkeit, Landesgrenzen weiter abzubauen, wenn es um Internethandel geht: Waren müssten von den Postdienstleistern leichter und billiger von Land zu Land transportiert werden und digitale Dienstleistungen dürften nicht an Landesgrenzen halt machen.
August 2014: The results of the EU questionnaire – and what of private copies?
At last! At the end of July, the EU Commission published a report about the public consultation on EU copyright law. Back in December 2013, the Internal Market and Services Directorate General in Brussels sent out a highly complex questionnaire with the considerable sum of 80 questions regarding future copyright legislation in the EU – and received upwards of 9,500 responses. We’ve taken a closer look at private copies in this context.
In the report, the Commission summarises the central arguments from more than 9,500 responses – without making value judgements – distinguishing between topic areas and special interest groups. A petition addressed directly to the Commission signed by almost 30,000 authors (www.creatorsforeurope.eu) during the survey at the beginning of the year was also taken into consideration in the report.
Early in 2014, Bild-Kunst delivered a statement of its position regarding copyright reform directly to the Internal Market and Services Directorate General. Interestingly enough, the report now available shows that it is primarily end users and consumers who are in favour of fair remuneration for authors and against buy-out contracts; these opinions are shared by a range of institutions, who state that the right to remuneration for authors and artists is absolutely essential. While the collecting societies criticise unfair contractual practices to the detriment of authors and also advocate an inalienable right to remuneration, the internet service operators are clear opponents and see no need for legal regulations on an EU level.
Focus on the evaluation of private digital copies
As far as Bild-Kunst is concerned, abolishing the levy for private copies and referring to licensing solutions remains unacceptable for authors, professional artists, and consumers alike. While consumers would lose the freedom to make privileged copies of legally purchased works, authors and professional artists would be deprived of a source of revenue which cannot be denied them on the basis of decisions taken to date by the ECJ. For this reason, Bild-Kunst is of the opinion that, rather than being abolished, the private copy system should be adapted to the conditions of the digital age. This is – and will remain - our considered position.
Regarding questions around private copy and reproduction, the crux of the issue is real-world application as well as exceptions in the digital sphere due to cloud-based online services; further questions arise from how levy regulations work within the EU. The following special interest groups have made their views on these issues known:
- End users/consumers
- Institutional users
- Authors, artists, collecting societies
- Publishers, producers, broadcasters
- Retailers, service providers
- EU member states
On the matter of private copies, the majority of European consumers thinks that exceptions in privileged copies and reproduction must be settled at EU level before legislation is passed; however, views on how this should actually be implemented are split. Some consumers are of the opinion that current regulations regarding private copies are completely outdated because they clash with new technology and argue further that, in the majority of cases, copies in the digital sphere have either no or a very minor negative economic effect on the rightholders. Others, meanwhile, suggest that the exception for personal copies should be extended in order to cover downloading material protected by copyright (regardless of the source) in order to allow non-commercial peer-to-peer sharing. Many respondents are satisfied with the current situation regarding private copies and are of the opinion that the member states should show more flexibility in implementing privileged copy and reproduction exceptions. Most respondents advocate making levies visible on receipts for products in order to improve transparency and consumer awareness.
This group is divided into two camps: while one side advocates maintaining the current system of private copies, the other wants to see radical reform. Some consider the copyright provisions to be too complicated and demand precise clarification in order to separate commercial use from other forms.
Authors, artists, collecting societies
This group is united in emphasising the importance of levies on private copies as a source of revenue. Opinions differ as to whether and how to change the current system, however. The argument is that current private copy regulations need to be adapted to the conditions of the online environment; the current system allows consumers to use content and also secures appropriate remuneration for the rightholders. These rightholders believe that the entitlement to make private copies has no proven negative effects on online business models; some of the respondents remain of the opinion that it is manufacturers who have a duty to pay. A vast majority advocates displaying levies clearly on receipts, which would at the very least raise awareness of the issue among consumers and increase the transparency of the system.
Publishers, producers, broadcasters
This group, too, is against intervention on levies for private copies, with a clear preference for licensing agreements visible: publishers, producers, and broadcasters are of the opinion that the current levy regulations are working well, and their view is that they do not constitute any sizeable hindrance to the internal market. Publishers stress that, while they frequently do not profit to a great extent from levies on private copies and reproductions as regulations rarely entitle them to distributions, these levies remain important to them.
Retailers, service providers
This group is very clearly against the way in which private copies are currently organised. The levies at a national level differ wildly and are also out of date, meaning that the system as it is is not suited to the digital world and needs to be renewed. This leads this group to advocate the abolition of levies for private copies (in the long run, of course), playing down the damage this would cause to rightholders. This group’s view is that there is a lack of clarity in the area, leading to legal uncertainty and negative effects on a range of business models – especially online. This group also rejects the idea of extending levies for online services, as this would hinder their development and scare off investors. Here too, there are demands for more transparency.
EU member states
Many of the member states surveyed advocate harmonising the system for private copies: most of them agree that specific barriers in levies should be removed in order to guarantee the smooth functioning of the internal market. More than one state, however, has recognised the great scope of action which is currently the privilege of national governments and is therefore considering the idea that this scope should be maintained. Several states are in favour of introducing visible levies on receipts; a few would rather have this as an optional measure rather than a requirement. The member states recognise the importance of adequate remuneration for authors, but see this as a national responsibility.
Michel Barnier, European Commissioner for the Internal Market and Services, had announced that he would publish the first political conclusions drawn from this exercise in a white paper this summer; he was, however, unable to get publication past the cabinet of commissioners, and so we shall have to wait and see how the new Commission under President Juncker acts on this issue.
July 2014: Shaky Start for the New European Commission
After a lot of back and forth, the European Council nominated former Luxembourg Prime Minister Jean-Claude Juncker as the European Commission’s new President. This was preceded by an intense altercation with British Prime Minister David Cameron, who wanted to block Juncker for being "too European." Ultimately, nationalist Hungarian Prime Minister Viktor Orbán was the only one to support this position in the vote. Juncker was put up for the European parliamentary election as the top candidate from the conservative European People’s Party (EPP), which came out as the strongest party and therefore claimed the position of EU President.
It was apparent from the five priorities presented by Jean-Claude Juncker in June for his work as President of the Commission that they were meant to be an act of appeasement to the Brits. The fifth point was dedicated directly to the fact that Juncker wanted to find a long-term answer to the "British question" in his presidency. One could add that a solution is necessary especially in view of the British referendum on remaining in the EU planned for 2017.
As already experienced in the 1980s with Maggie Thatcher, the danger lies in continental Europe yielding on issues of substance in order to keep the Brits in the EU at all costs – at least in a light version of the EU without the Euro and with border controls. The list of things being readily offered as concessions seems to include cultural policy and the copyright issue. In addition to energy policy (number two) and fiscal policy (number four), Juncker declared as priorities two issues, which are sensitive for the cultural sector.
Juncker’s top position goes to the creation of a borderless digital market, which he believes will generate 500 billion Euros in growth and hundreds of thousands of new jobs. There it is again – the Anglo-Saxon belief in the sovereign power of the market as a panacea for all problems. One might add – it’s as if the financial crisis had never occurred and Juncker didn’t know any better. Juncker cites the elimination of mobile phone roaming fees and borderless access to music, movies and sporting events as examples of the advantages of the digital internal market. He wants to break down national responsibilities for telecommunications, data protection (!) and copyright (!) in exchange for this.
It gets even worse. Point three of Juncker’s list of priorities promises the conclusion of a free trade agreement with the United States, albeit without compromising European regulations on security, health, social affairs and data protection. He explicitly declared food safety as non-negotiable.
Culture is not to be found on the list of exceptions.
June 2014: Europe: Improve the situation of film authors!
Europe now has a freshly elected parliament, with many new members coming onto the scene: and while this means a lot of work, it also offers new opportunities to achieve improvements for our members. The SAA (Society of Audiovisual Authors) represents the interests of the European collection societies for film authors in Brussels. We will be approaching both new MEPs and those returned to office with a list of demands which all share the same central goal:
Putting authors back at the heart of copyright policy!
1: Remuneration must be linked to use of works for film authors too!
Copyright regulations that do not provide compensation for authors are hollow, and yet this is unfortunately a regular occurrence in the film industry. That is why we demand the implementation of two specific measures: firstly, contractual conditions for film authors must be improved – buy-out contracts must be banned; secondly, a statutory royalty claim for film authors must be introduced to guarantee fair, usage-related royalties – even if all rights accrue to the producer. It is quite frankly beyond comprehension why copyright functions in the way it should only for the creators in the music industry, where societies such as GEMA, GLV, etc. have been generating proper remuneration for each incidence of use for several decades now.
2: Reinforce the European strategy in the audio-visual industries!
The EU audio-visual media services directive, which came into force at the end of 2007 and covers both classic television and video-on-demand, sets certain minimum standards in areas such as protection for young persons and advertising; it also promotes European films. However, the implementation of this latter at national level has thus far, for a variety of reasons, not produced any measurable improvement; this is why it is now time to revise the provisions of the directive in order to strengthen diversity and competitiveness in the European audio-visual sector.
3: Consolidate the private copying system!
In the digital age, more copies are made than ever before, and even if there were no system for private copies, we would have to invent one so that consumers could produce copies for personal use without hesitation within the protection of the law. By the same token, a fee levied on hardware represents an important source of income for creative professionals – a source which actually flows through "to the source" of the work and value creation. Anyone demanding the abolition of the system, as is the US and Asian-dominated hardware industry, is pursuing an ill-disguised strategy of profit-maximisation at the expense of European consumers and creative professionals – or does anyone really believe that prices for devices would drop by a few Euros if fees were no longer levied? What we need is a modern, harmonised, Europe-wide system for private copies.
4: No free-trade agreement for culture!
Cultural products are not typical commercial commodities: in fact, they are much, much more and have a greater societal importance than the supply of cheap goods from abroad. This is why we demand that the culture industry be cordoned off from the reach of the free-trade agreement. Europe already has culture – and that is the way it should stay.
5: Reboot the e-commerce directive!
The current e-commerce directive dates from 2000 – and it is showing its age. The privileges accorded to hosting providers are especially in need of updating: while it may once have made sense to release providers from liability when they were only handling e-mails and websites, today’s internet service providers are platforms for all types of content frequently uploaded by consumers on YouTube, Flickr, Facebook, etc. The most popular items on these platforms are of course works protected by copyright, and it is simply unacceptable that these works are stuck in a largely lawless area. To counter this, we demand that providers be made liable for content on their platforms: after all, it is precisely this content that the providers use to reap their tidy profits.
6: Stop erosion of the cable retransmission right!
The remunerations of cable network operators are another substantial source of income for film authors in Europe, and for this to remain so, lawmakers at a national level – including in Germany – must make cable retransmission technology-neutral. This means putting all providers on a level playing field and closing loopholes that allow providers to escape the responsibility of paying a reasonable remuneration, even though nothing has changed in the retransmission of programmes as such. We demand a technology-neutral, state-of-the-art form of cable retransmission right.
7: Harmonise taxes and digital services!
The massive tax evasion practised by the largest US internet portals in their skilful use of loopholes in European tax legislation can only really lead to one demand: close these loopholes! Anyone conducting business with European citizens should pay reasonable amounts of tax in Europe as well. Another example of shortcomings in the harmonisation of tax law are the differing value-added tax rates for audio-visual content depending on the channel on which it reaches the consumers (cinema, TV, VOD, etc.). A reduced rate of VAT on all forms of audio-visual services would support their distribution – especially that of VOD platforms.
Last but not least, the EU cannot require rightholders to acquire multi-territorial licences if doing so in practice leads to complicated cases of double-taxation: we call on the EU to get its own house in order first!
May 2014: EU institutions and authors
The crucial decisions affecting copyright are no longer taken by the German Bundestag or by the Federal Court of Justice (FCJ), but by the European Parliament, the European Commission and the European Court of Justice (ECJ). In the 2009-2014 legislative period, the various European institutions took up quite different fundamental positions with regard to copyright, and the powerful Commission is regrettably occupied to a greater extent by those aiming to weaken copyright as it is adapted to digitisation; the EU Parliament and the ECJ have, meanwhile, passed resolutions and judgements in favour of the rights of authors.
The Commission has the right to initiate laws and is currently preparing to present what is referred to as a "white paper" on reform of copyright law before the summer recess; this paper will lay out the framework for legislative activities, and must be respected by the new European Commission when it begins its work in autumn 2014. This white paper will be accompanied by a range of further documents and measures, including a survey of stakeholder groups carried out from December 2013 through to early March 2014.
The Commission is also required to produce an impact assessment for each law it initiates, and the confidential draft of this assessment on copyright reform – recently leaked by the British civil rights organisation Statewatch – is alarming. Above all with regard to copies made for personal use, this paper is full-to-bursting with unsubstantiated claims which would appear to have been lifted straight from the briefing documents of industry lobbyists. Our Brussels film association SAA immediately contacted the Commissioner for the Internal Market, Michel Barnier, refuting the unobjective criticisms regarding private copies.
The positions taken by the EU Commission & the EU Parliaments on copyright
Overall, there is no way round the fact that the EU Commission – i.e. the government of the European Union – is sceptical of copyright and is more inclined to listen to industry lobbyists looking to reduce the level of protection. Then again, the exception always proves the rule, and the dialogue regarding resale rights between art dealers and collecting societies was moderated in a considered and neutral manner by the Commission civil servants right through to the signing of the final document on 17 February 2014.
In contrast to the EU Commission, the EU Parliament now reaching the end of its legislative term has repeatedly seized the opportunity to demand strong copyright regulations and fair remuneration for authors. The majority of the European People’s Party (EPP) and Progressive Alliance of Socialists and Democrats (S&D) parliamentary parties were the driving force behind this, while the smaller Greens (EFA) and Alliance of Liberals and Democrats (ALDE) were critical of and hostile to copyright respectively.
The parliamentary resolution on the online distribution of cinematographic works, which demands a royalty claim for authors (Cavada Report, September 2012), is worthy of particular mention. Meanwhile very recently, in the struggle surrounding the right to make private copies, a clear majority in the Parliament voted to maintain and develop this entitlement (Castex Report, February 2014). The Parliament demonstrated that it is entirely capable of setting its own independent agenda in July 2012, when it rejected the Anti-Counterfeiting Trade Agreement (ACTA), meaning that the EU could not sign this international agreement.
Copyright is a matter for top-level EU courts
With so many national regulations now based on EU directives that are applied in unison across Europe, the ECJ too is increasingly required to pass judgement on copyright litigation. The fact that the Court does not lean towards one side or the other, but retains an objective, juridical point of view, goes without saying; yet it should be noted that the greater the number of issues settled at ECJ level, the greater the benefit for authors. This is because copyright royalties are (generally) only paid by users once there is an unambiguous legal obligation to do so – or, phrased inversely: only when there is no chance of escaping the obligation to pay.
Showing the way: private copies
The example of private copies is an object lesson on how the ECJ is progressively providing a clear legal framework. For a long time, there was criticism of the levy for private copies being added to the price for all hardware, regardless of whether the devices in question were destined to produce copies for personal use of not. The ECJ decided that there had to be a clear link between the levy and the private copy exception: i.e. devices, with which privileged copies could not be made, had to remain exempted from the levy (judgement of 21/10/2010, Padawan).
In two further judgements (16/06/2011, Opus, and 09/02/2012, Luksan), the ECJ confirmed that authors themselves must also be included in the remuneration for private copies. Because, if it is the author who suffers from the production of private copies, national lawmakers are obliged to produce compensation regulations that provide recompense (i.e. in form of the levy) to the author, too.
In a case pursued by the German VG Wort collecting society, the ECJ came to the conclusion that there can be no question of the rightholder’s authorisation playing any role in the context of private copying inasmuch as private copies are already permitted by law; on the other hand, such authorisation cannot have a negative impact on remuneration (judgement of 27/06/2013, VG Wort).
The conclusion is that, taking the ECJ’s prudent interpretation of the law as a basis, authors should rely on the European Parliament as a counterweight to the lobbyist-friendly EU Commission.
Given this background, all authors really should be sure to make use of their vote in the May 2014 European elections.
March 2014: Final adjustments to the future course of copyright law
It appears that the European Commission is planning to publish a white paper on reforming copyright before the summer break, as Michel Barnier, European Commissioner for the Internal Market and Services – an advocate of copyright regulations – seems to consider this step necessary. The white paper will contain concrete suggestions for legislative measures, bringing the period of consultation, which mostly starts with a green paper and includes a survey of interested groups, to an end: this copyright survey was concluded on March 5, and the Commission received more than 10,000 responses which are currently being evaluated by a working party.
A Commission civil servant was quoted as stating that rules regarding private copies were right at the top of the list of topics to be dealt with, followed in second place by a regulation on user-generated content. What this made clear was that the two priority topics will focus on consumers, who quite rightly expect that copyright law will not impede new usage habits in the digital sphere.
Future alliances; levies to be introduced
Creative professionals will need to enter into an alliance with consumers: anything that cannot sensibly be licensed in the primary market should be permitted and covered by a flat-rate fee; and it is only fair that this fee be paid by those whose products and services encourage the copying and exchange of images, texts, and music, as well as films, without themselves contributing to the production of content. Anyone earning a profit from the creative work of others – i.e. hardware producers and internet service providers – must pay a fee.
With regard to reforms to rules on private copies, we can now see the light at the end of the tunnel for creative professionals.
February 2014: Bild-Kunst responds to EU Questionnaire
VG Bild-Kunst Position – Overview
We are focusing on specific issues that affect our members and believe that certain measures are required at European level to guarantee cross-border availability of content services in the Single Market as well as appropriate protection for rightholders.
We consider appropriate the European Court of Justice’s (ECJ) opinion on hyperlinks to copyrighted works. In the Court’s view, rightholder authorisation is not required for hyperlinking if the content in question is readily and legally available to everyone on the original website. Should access to the original website be restricted (e.g. content on a payment service website), rightholder authorisation is required to establish such links.
VG Bild-Kunst believes it would be sensible to find a differentiated solution regarding the issue of framing. This term refers to website operator practice of technically integrating externally hosted website content into their own site. If this content is incorporated into the operator’s website in such a way that the integration is unrecognisable as such to the end-consumer, it must be licensed. In contrast, a licence is not required if end-consumers can recognise that the website operator has incorporated external content. In such instances, this integration merely represents a more convenient form of classic linking. There is a critical question relating to the resale of purchased digital content. In this regard, VG Bild-Kunst rejects the concept of a regulatory framework for the resale of digital work copies by end-consumers, as we fear negative consequences for rightholders.
We have strong reservations on the issue of creating an EU level registration system for the identification and licensing of works, as not all protectable works are suitable for registration. In particular, a registration requirement would create enormous problems for holders of rights to visual works simply due to the vast number of protected works created by photographers and graphic or other visual artists.
In our view, the registration of works can only be successful, if it is introduced as a global mandatory requirement – naturally with full implementation. This idea would open the need for enormous investments and ongoing costs without offering rightholders any tangible benefits.
The consultations also raise the question of how to handle so-called remixes and mashups, i.e. the use of pre-existing works as new content. We consider appropriate the German rule in § 24 of the German Copyright Act (UrhG): Those who help themselves to the works of others must obtain the rights to use them unless the new work is so independent that the pre-existing work is secondary to it. With respect to the search for a solution to the issue of mass use of pre-existing works (e.g. on YouTube), it seems appropriate to us, first and foremost to oblige platform operators to pay fair remuneration to the creators of pre-existing works via collecting societies. This would open the door for non-commercial dissemination of said content via the aforementioned platforms. Such a compromise would equally benefit end-consumers and creative artists.
We have also taken a stand on the topic of digital copying for private use. VG Bild-Kunst views the elimination of private copying limits in favour of licensing solutions as unacceptable for authors, performers and consumers. The latter would forfeit their freedom to copy legally purchased works for private use. Authors and performers would lose a source of revenue, which the ECJ has ruled cannot be taken away from them. This is why VG Bild-Kunst believes that the requirements should be adapted to the realities of the digital age instead of abolishing the private copying system.
Need for Action on Remuneration Rules
There is currently a search at EU level for the best mechanism to ensure that authors receive adequate remuneration for the use of their works and services. It is the view of VG Bild-Kunst that the primary need for action lies with ensuring appropriate remuneration for online use of the works of film authors and photojournalists. The current widespread practice of buy-out agreements is an obstacle to adjusting royalty rates to the market success of cinematographic works. Ensuring that film authors continuously receive a share in the commercial success of their works represents a basic measure that could help many of those affected bridge periods in which they receive no contracts.
VG Bild-Kunst supports the introduction of a mandatory remuneration requirement for film authors that would not affect the assignment of online rights and remain with film authors. For the remuneration system to function properly, the requirement would need to apply to those communicating works to end-customers (television broadcasters and online platforms) and not to film producers.
Buy-out agreements without rights-transfer time limits exclude the possibility of renegotiation and preclude authors from financially benefitting from any later success of their works. Legislators should end this practice at EU level.
View our complete responses to the EU questionnaire here. (in German)
January 2014: Final Stretch to EU Parliamentary Elections in May
A new European Commission will be elected in May, and the current EU officials want to prepare the way for their successors. A public consultation form with around 80 questions was sent out in December 2013. How can European copyright be modernised? And, should the changes be cautious or radical? There is a trend that poses a challenge for us.
The EU Commission term of office is tied to the legislative period of the European Parliament. Elections for the latter will be held in May – in almost exactly four months. Ordinarily, nothing really happens in pre-election periods. The President of the United States is even referred to as a “lame duck” at the end of his second (and final) term. This makes it all the more astonishing that the Commission is currently given to hustle and bustle in the field of copyright. A public consultation form with almost 80 questions on how to modernise the European copyright framework was sent out to the parties concerned over Christmas.
Draft Directive Final Stretch
It is clear that the current EU officials are seeking to prepare the way for their successors who will assume their official duties in late summer. That is when the typical green papers, consultations, impact assessments, and road maps of the European legislative process will be tabled in order to quickly produce a draft directive.
This approach represents a compromise between various interests. Even at European level, there are prudent individuals who support a cautious adjustment of copyright law to meet the requirements of a digital economy, but there are also impatient officials who seek to radically trim copyright law in order to remove all impediments (i.e. licensing requirements) to new digital services as quickly as possible.
Copyright Reform – Cautious or Radical?
The prudent camp is led by Internal Market Commissioner Michel Barnier from France, which is not surprising considering that continental European copyright was "invented" in France. This concept prioritises authors. The radical camp is led by Neelie Kroes from the Netherlands, and she leans toward the Anglo-Saxon understanding of copyright, whereby copyright is purely a tool for promoting innovation. According to this view, the author is only one link in the utilisation chain.
A dispute ensued between Barnier and Kroes regarding the right way to handle copyright, and EU Commission President Barroso felt compelled to obligate the adversaries to a compromise in late 2012. They subsequently agreed to a two-track approach.
The next step was the launching of an interest group dialogue in 2013. The objective was for stakeholders, i.e. rightholders and users, to negotiate voluntary solutions for some of the most urgent problems. This dialogue was fostered by Michel Barnier who believed that solutions could be found within the existing copyright framework for the problems of digitisation. The final plenary meeting of this dialogue with the telling name "Licences for Europe" took place on 13 November 2013, and we reported on this. Following the completion of this initiative, we are now faced with the concession made to the radical copyright reformers (i.e. Commissioner Neelie Kroes), which was negotiated in December 2012 – preparing for the process of a possible amendment to the European copyright framework.
Questionnaire Sets Course in Anglo-American Direction
Responses to the Commission’s questionnaire were due by 5 February. The intent of this document was to identify the areas, which require reform. However, the choice of questions alone shows where the process is headed. The primary objective is to limit copyright. The radicals want to prune back existing copyright to the point where multiple uses of copyrighted works by modern digital service providers would be possible without licensing.
Their role model is the United States, where an appellate court ruled in mid-November that it was legal for Google to scan 20 million books without obtaining a licence for them. The court based its decision on the fact that the new service benefits society – an undisputed fact. According to continental European understanding of copyright, however, it is not understandable why the authors should be left entirely empty-handed. The US court also founded its decision on “fair use” limitations, a sort of universal exception to copyright protection that serves as an elastic clause in the courts and makes the predictability of legal decisions possible only after endless proceedings. Google began scanning books in 2004, and a final legal decision has yet to be reached.
The public consultation introduced by the EU Commission’s questionnaire gives all of the supporters of the Anglo-American understanding of copyright a good opportunity to articulate their reform wishes on the one hand and provides the hardliners in the Commission with a chance to present reform as being desperately needed on the other.
There is now a need for action on the part of all proponents of the continental European understanding of copyright who believe that creators of works should continue receiving appropriate remuneration also in the digital age. We will keep you up to date.