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EU Directive: Copyright in the Digital Single Market

Chris JHolland4 April 2019

The new copyright directive, the DSM Directive is nearing the completion of its long journey through the EU legislative  procedure. The latest version, has been approved by the European Parliament and now goes back to the Council. Previously there were very few mandatory exceptions to copyright in EU legislation. One of the important aspects of the DSM Directive is that it introduces a number of exceptions which are indeed mandatory for all member states, departing from the smorgasbord approach of the previous Infosoc Directive which presented a number of exceptions from which member states could pick and choose.

The new exceptions, such as Text and Data Mining exception and Preservation exception are generally favourable to libraries and research. The UK is already ahead of the game to some extent, for example in having a TDM exception, but in some cases the DSM exceptions would enhance and go further than what we have already and also have the advantage of operating across borders within the EU.

It is a moot point whether the DSM Directive will ever be implemented in the UK  or whether the timing of Brexit will prevent that happening.

Open letter supporting a strong TDM exception in EU law

Chris JHolland28 September 2017

A new open letter from EARE (the European Alliance for Research Excellence) to the MEPs sitting on the EU Parliament’s Legal Affairs Committee (JURI Committee) puts the case for a really effective and workable copyright exception for Text and Data Mining (TDM) in Europe. UCL is one of some 20 organisations which have signed the letter, representing universities, research organisations, libraries and businesses in Europe.  The letter makes a strong case for an exception which permits anyone with lawful access to a body of copyright protected material to use the innovative techniques of TDM to carry out computer-based analyisis of that material without the risk of infringing copyright. The JURI Committeee will be considering amendments to the draft Copyright Directive in the near future, so this initiative is very timely.

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TDM and copyright advocacy

Chris JHolland13 June 2017

The draft EU Directive on Copyright in the Digital Single Market is currently being scrutinised by a series of European Parliamentary committees and is open to proposed amendments which could either maximise the usefulness to the HE and research sector of the proposed copyright exceptions or alternatively render them quite unhelpful. This is the subject of a great deal of advocacy by groups supporting a more user-friendly copyright framework and those who are opposed to more generous exceptions.

In this context UCL Library Services has recently lent its support to the European Alliance for Research Excellence (EARE) which provides a platform for those advocating a more generous EU wide exception for Text and Data Mining (TDM).

The original wording of the draft Directive (Article 3) provided an exception only for the benefit of a narrowly defined class of “research organisations” run on a non-profit basis. That would create uncertainty about the position of collaborative projects of all kinds between universities and commercial organisations, including technology based start-ups.

The position of EARE is that since one has to have “legal access” to the information in order to carry out TDM under the exception then the exception should be available to anyone who has legal access not just a narrow class of research organisations.  This is an significant issue for the future of research in Europe given the importance of TDM in all areas of research.

EU Copyright Directive published today

Chris JHolland14 September 2016

The long awaited EU Directive on Copyright in the Digital Single Market (COM(2016) 593 final) has just been published. At this point it is just a “proposal” and will need to complete the EU legislative process. In addition, as a “Directive” it will not have immediate effect in the member states when it has become law. It needs to be implemented in each EU member state and there may be variations in the way it is eventually implemented, although the provisions are mandatory, not optional like most of the current EU copyright exceptions.  It includes some positive features offering modest improvements. The negatives will be covered in a follow-up post:

  • Text and Data Mining exception (Art.3). Currently the UK is the only EU members which has a TDM exception.
  • Education exception (Art.4) covering the use of digital material for teaching. This complements the existing exception and covers providing digital material in a secure environment such as a VLE. It covers distance learning and cross border delivery within the EU.
  • A broader Preservation exception than we currently enjoy in the UK (Art. 5) for cultural heritage organisations which looks as though it might cover collaborative and cross border preservation schemes.
  • Framework for applying Extended Collective Licensing (Art. 7) to out-of-commerce works (the UK already has this – it is a weaker solution than providing a new exception, depending as it does on the willingness of rightsholders and collective management organisations).

Perhaps the most positive aspect is that these new exceptions (being mandatory) will apply to all EU member states and will apply to cross-border activities within the EU. [Part 2 on the less positive aspects of the Directive to follow]

New “Format Shifting” Exception under attack

Chris JHolland23 June 2015

Music industry bodies have challenged the legality of the new Private Copying Exception (CDPA, 28B). The British Academy of Songwriters, Composers and Authors (BASCA) along with the Musicians’ Union and UK Music have been seeking judicial review of the Government’s implementation of the exception in 2014. There is no direct relevance to Libraries or HE, but it may be of interest.

The basis of the challenge is that the Government failed to introduce a compensation scheme to make good any loss to the copyright owners following from the new exception, which enables consumers to copy for their own use any recorded music or other content which they have purchased, such as ripping a CD for your smart phone. Yes, of course you were doing that anyway – The new exception legitimises common practice!

In most EU countries there are levies on recording equipment – they work like a sales tax designed to compensate copyright owners for losses resulting from private copying. Levies are found to be unwieldy and bureaucratic in those countries, but they do provide substantial revenue for copyright owners via collecting societies.

There is an argument that the EU Copyright Directive requires compensation and the levies tick that box. 

The Government’s stance is that they have kept the new exception narrow so that harm to copyright owners will be non-existent or minimal – hence no compensation required.

The judgment in the High Court by Mr Justice Green has recently been issued and is available online here . This is a partial victory for the music industry bodies. The court agreed with the claimants on one significant point: The evidence examined by the Government to decide that damage to Copyright owners would be minimal was in fact inadequate. This is enough to make the Government’s action unlawful, but leaves it various options, such as:

  • Gather more persuasive evidence
  • Introduce levies
  • Refer questions to the CJEU
  • Repeal the exception (CDPA Section 28B)
  • Appeal to a higher court

Watch this space!

Pirate Party MEP nails her colours to the mast

Chris JHolland30 January 2015

Julia Reda, MEP for the German Piratenpartei, has just published the first draft of her report on copyright reform commissioned by the European Parliament. You can also read Ms Reda’s blog, here . The measures recommended in the report are very favourable to users of copyright material, including the reduction of the standard copyright term to the author’s lifetime plus 50 years (the minimum requirement of the Berne Convention). Among other measures the Report also recommends:

Extending the Text and Data Mining exception to cover TDM for any purpose (including commercial); Creating a new exception permitting libraries to lend e-books, “…irrespective of the place of access”

The report also favours a new piece of EU legislation replacing the Copyright Directive, which would apply immediately across the EU without requiring national implementation (it would need to be a “Regulation” as opposed to the current Copyright Directive).

It would follow that the various exceptions included in the new legislation would be mandatory in all member states. The current list of exceptions in Article 5 of the Directive resembles a smorgasbord where the member states can select the exceptions of their choice while leaving others on the table. The current situation creates complexity and uncertainty around cross border access to copyright material within the EU. It will be interesting to see how Julia Reda’s report is received by the European Parliament and other EU bodies.

A Couple of things to watch out for in 2015

Chris JHolland9 January 2015

The EU initiative to review and update Copyright is still ongoing (although you could be forgiven for forgetting about it) and no doubt there will be proposals in 2015, following the previous consultation exercise. Apparently copyright features high up the agenda of Commissioner Oettinger . So there could be further changes to copyright legislation, following on the heels of the UK Government’s updating of the exceptions to copyright in 2014. The EU is committed to increased harmonisation of copyright in its member countries.

UK Music and various other bodies representing the music industry have launched a legal challenge to the Government’s implementation of an exception for Private Copying. The new exception permits you to format shift, for example by copying a music CD you have bought to use on your mobile device (essentially legalising what people were doing anyway). This is the new Section 28B of the Copyright, Designs and Patents Act 1988 (CDPA), “Personal copies for private use”.

The basis for the challenge is that although the EU Copyright Directive allows  member states to implement just such an exception, it also includes a requirement for “fair compensation” for the relevant copyright owners and in the UK there is no mechanism to deliver that. Watch this space!

The meaning of Parody: Are you having a laugh?

Chris JHolland16 October 2014

The new copyright exception for Caricature, parody and pastiche came into force on 1st October 2014. The core provision is:

“Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work”

This is drawn directly from Article 5 of the EU Copyright Directive and some member states have been benefitting from the parody exception for some time. The recent Deckmyn case , was a reference from a Belgian court to the Court of Justice of the European Union. The case arises from the use made by members of a Flemish nationalist political party of an adapted version of the cover of a well known comic book in order to make a political point about the Mayor of Ghent.

The adapted version was distributed in the form of a calendar. The heirs of the creator of the original “Suske en Wiske” comic books claimed infringement of their copyright. Those distributing the calendar with the “parody” version claimed that their use of the work was covered by the exception for caricature, parody and pastiche.

The Belgian court referred a number of questions about the meaning of “Parody” in the context of the EU Copyright Directive to the CJEU. In response the Court makes various points about parody, including: “…the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery…”

One interesting aspect of Parody exception is the potential clash with the author’s moral right to be protected from derogatory treatment of their work, although the Court was not asked to address this question. One person’s parody could be another person’s derogatory treatment.

Museums benefit from New Copyright Exceptions

Chris JHolland30 May 2014

It is interesting that some of the new copyright exceptions have been extended to benefit Museums specifically:

Preservation Copies
A good example is the updated Section 42 of the Copyright Designs and Patents Act 1988 (CDPA) which permits libraries, archives and museums to reproduce copyright works for purposes of replacement and preservation. Not only does this exception now cover museums, it has also has also been widened to encompass copying of works in any format. This means for example that deteriorating film stock and fading photographs can now be reproduced (digitised) for preservation.
Dedicated Terminals
The other prominent example of the inclusion of museums is an entirely new exception in Section 40B of CDPA (new to UK  legislation that is – it is drawn from the EU Copyright Directive 2001/29/EC). This permits libraries, archives, museums and educational establishments to make a copyright work available on a dedicated terminal to members of the public for purposes of research and private study. Interesting that this is not limited to “non commercial” research, but then it does not permit copying.
Although not explicit in the wording of the new exception, the IP Minister, Lord Younger has made it clear that the primary purpose is to improve the availability of digitised copies of older copyright material which may be fragile and otherwise inaccessible to the public.
There is ongoing litigation in Germany involving a University which sought to rely on the underlying exception in EU legislation to justify making a recently published book available via “dedicated terminals” (Schulze v. Darmstadt). Various issues have been referred to the European Court of Justice (reference C-117/13). The outcome will be interesting.