AND TODAY ’ S TRACKS OF ACTION ON COPYRIGHT
he creation of the EU Digital Single Market is a policy objective rooted in the ‘Digital Agenda for Europe’, an initiative that the European Commission launched and defined in May 2010.1 The Digital Agenda aims at delivering sustainable economic and social benefits from a digital single market based on fast and ultra-fast internet and interoperable applications, thus implementing one of the seven flagship initiatives included in the EUROPE 2020 Strategy (COM/2010/2020). The Agenda comprises seven pillars and 101 actions. In particular, Pillar I of the Agenda contains 21 actions with the goal of creating a digital single market by removing all barriers that might hamper the free flow of online services and entertainment across member state borders, thus fostering a European market for online content, establishing a single area for online payments and protecting EU consumers in cyberspace.
On 18 December 2012, the European Commission published a ‘to-do’
list, disclosing new digital priorities for 2013-14. Priority number 5 aims at updating the EU's copyright framework, which is considered a key issue to achieve the goal of a Digital Single Market.2 The Commission is currently working on this action plan by developing two parallel tracks of action. The first track concerns the efforts undertaken to review and modernise EU
1 See the “Digital Agenda for Europe” website ( http://ec.europa.eu/digital-agenda/digital-agenda-europe). See also Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, “A Digital Agenda for Europe”, COM(2010) 245 final, 19 May 2010 ( http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52010DC0245:EN:NOT).
2 See Communication from the Commission on Content in the Digital Single Market, COM(2012)789 final, 18 December 2012 [hereinafter Content in the Digital Single Market]
( http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/121218_communication-online-content_en.pdf).
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copyright legislation, whose most tangible results to date have been the 2012 Orphan Works Directive3 and the proposal on collective rights management.4 The second track is the creation of a multi-stakeholder platform (‘Licences for Europe’) that should help develop industry-led solutions to a number of issues for which rapid progress seems necessary and possible without legislative changes. Interestingly, Michel Barnier, European Commissioner for the Internal Market, announced the launch of this initiative in the course of delivering the keynote speech at the inaugural event of the CEPS Task Force on Copyright in the EU Digital Single Market on 7 November 2012.5
As regards the first track, since 2011 the Commission has been reflecting on how to create a Single Market for intellectual property rights in order to boost creativity and innovation.6 Unification of legislation through a regulation is certainly the best option for single markets to materialise and to develop fully in the various sectors. Unification seems also an irreversible trend at EU level after the entry into force of the Lisbon Treaty, which facilitates the creation of unitary intellectual property rights.7 For several reasons, however, the EU has a long way to go before it can establish a unified legal framework in the field of copyright. The fact that copyright is the only field in the domain of intellectual property where a
3 See Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works, OJ L 299/5, 27 October 2012, [hereinafter Orphan Works Directive].
4 Proposal for a Directive of the European Parliament and of the Council on Collective Management of Copyright and Related Rights and Multi-territorial Licensing of Rights in Musical Works for Online Uses in the Internal Market, COM(2012) 372 final, 11 July 2012 [hereinafter Proposal on Collective Management] (http://ec.europa.eu/internal_market/copyright/docs/
management/com-2012-3722_en.pdf).
5 See M. Barnier (2012), “Making European Copyright Fit for Purpose in the Age of Internet”, Speech 12/785, Centre for European Policy Studies, Brussels, 7 November (http://europa.eu/rapid/press-release_SPEECH-12-785_en.htm?locale=EN).
6 Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, European Commission,
“A Single Market for Intellectual Property Rights - Boosting creativity and innovation to provide economic growth, high quality jobs, and first class products and services in Europe”, COM(2011) 287 final Brussels, 24 May 2011 [hereinafter A Single Market for Intellectual Property Rights] (http://ec.europa.eu/internal_market/copyright/docs/
ipr_strategy/COM_2011_287_en.pdf).
7 See Article 118 TFEU.
unification process has not yet started (and is unlikely to start in the near future) is not coincidental.
EU policy-makers are still reflecting whether copyright should be modernised through harmonisation (i.e. a comprehensive codification of the present body of EU copyright Directives) or unification measures (i.e.
the creation of a unified legal framework granting uniform pan-European entitlements that could either supersede or co-exist with national titles).
According to the Commission, a higher degree of harmonisation of national rules might be pursued through the adoption of a ‘European Copyright Code’.8 Such a codification effort would help to consolidate the existing EU copyright entitlements and would finally give EU law-makers the possibility of updating and harmonising the field of copyright exceptions and of adapting the existing enforcement rules to the digital environment with the aim to ensure a fair balance with other fundamental rights.
As far as the second track of action is concerned, ‘Licences for Europe’ was launched in January 2013 and has developed four work packages, namely cross-border access and portability of services, user-generated content and licenses for small-scale users of protected material, audio-visual work and film heritage institutions and text- and data-mining.9 The stakeholder dialogue is being developed through closed-door meetings where enterprises from the creative industries, licensing bodies, commercial and non-commercial users of protected content and Internet end-user representatives are exploring and testing innovative licensing solutions enabled by new technologies. The purpose of the whole exercise is to identify short-term, pragmatic solutions, where possible, but also to explore the limits of licensing in the selected areas. Even though the outcome of this initiative is still uncertain, a dialogue among stakeholders and the formulation of concrete proposals might place the European Commission in a better position to assess which goals can be realistically pursued through industry-led solutions and, conversely, which policy objectives will require public policy action.
8 See European Commission (2011a), A Single Market for Intellectual Property Rights, p. 11.
9 See the ‘Licences for Europe’ website (http://ec.europa.eu/internal_market/copyright/licensing-europe/index_en.htm).
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