The conference on Modernising Copyright, jointly organised by the Irish Centre for European Law and the School of Law, Trinity College Dublin, brought together a number of interesting academics, practitioners and commentators, for a lively discussion concerning various aspects of the future of copyright law in Europe. Among the issues addressed were the development of a Digital Single Market (DSM) in Europe, the nature of copyright exceptions and limitations, and the position of online service providers and intermediaries vís-a-vís copyright infringement.
Introduction of a DSM in Europe has been identified as a priority for the EU Commission. A DSM would allow digital content to free-flow throughout the single market, rather than being licensed on a territorial basis. The concept was roundly proclaimed by the panel as a necessary step forward for Europe, albeit one that will consequently mean a back-seat for the principle of territoriality. The EU Commission proposal, which was analysed at the conference by Dr Eleonora Rosati, is confined to services which verify geo-location, and only refers to subscribers being able to access content during their ‘temporary presence’ in another Member State. With ‘temporary presence’ undefined in the draft Regulation, it is difficult to speculate whether the proposal will go any further than simply allowing EU citizens on holiday in another Member State to catch up on their Netflix content or access the Top 10 hits of their Member State of residence on Spotify. Geo-blocking and territorial licensing are in place to allow for maximum exploitation of copyright content, for example, the film sector enjoys lucrative returns by virtue of territorial licensing of content. However, as pointed out by Dr Guiseppe Mazziotti, the practice of geo-blocking content is the biggest barrier to the legitimate access of cross-border content. He argued that the draft Regulation stops short of curtailing territoriality and is ’embarrassingly modest’. Dr Felice Simonelli said there are many ways to implement a DSM, arguing that intangible content inherently presents itself to a DSM. His most interesting proposal was the implementation of an EU-wide system of optional copyright registration. An automatic accrual of copyright sits in line with the low threshold for qualification. The notion of an EU-wide copyright poses many issues, most notably the question of harmonising the standard of qualifying for copyright protection across Europe and the introduction of a two-tier system. While there are European-wide trademarks and design rights, these are complementary to the regimes in place at national level, which also require registration.
Exceptions and Limitations
The issue of the ’20 optional exceptions’ contained in the InfoSoc Directive (Directive 2001/29) was a topic of discussion for Dr Cédric Manara (Google). He contrasted the shrinking scope of the existing exceptions to the comparative expansion of rights, for example the right of communication to the public now includes ‘linking’ content. The fragmented implementation of the exceptions by the various Member States means that a single-market exists for rights-holders but the exceptions are imbalanced, with users being able to perform certain actions in one Member State that they cannot in another. For an online intermediary, this poses difficulties as it requires a fresh assessment as to whether a particular exception applies in local law when it receives notice of a takedown request. Given that the scope of the exceptions is variable and unclear, and that the e-Commerce Directive imposes liability on an intermediary who does not act quickly with knowledge of an infringement, the intermediary is more likely to not rely on an exception and instead remove the material. Arguably, this defeats the purpose of the exceptions and Dr Manara suggested that the new objective should be the protection of users from the ‘uncertainty of exceptions’.
Liability of Online Content Platforms and Social Networks
The Conference also hosted a panel, moderated by Ms Justice Fidelma Macken, which focused on the copyright liability of online content platforms and social networks. Vishnu Shankar traced the development of online service providers (OSPs) from the neutral and passive platforms that they were in 2000 to the role that they play today, in terms of being neither passive nor neutral. He outlined that OSPs are retailers and publishers of content, and are not neutral insofar as they maintain both content licensing and enforcement relationships. OSPs now shape and create content and the huge access to personal data and preferences allows OSPs to use online behaviour and profiling to personalise the content offered. The discussion asked whether OSPs should play a monitoring role for copyright infringement, given that they can lawfully monitor users for commercialisation purposes. A distinction should be drawn though between the voluntary monitoring for commercial purposes and the chilling effect a mandatory monitoring policy might have on the freedom to offer services. It should be remembered that any restriction on this (or any other) fundamental right under EU law must be proportionate. Twentieth Century Fox v BSkyB  EWHC 1082 (Ch) imported the proportionality analysis from previous UK judgments on trademark law into a copyright context, while in Ireland, Professor Eoin O’Dell argued that proportionality is not analysed in particular detail by Cregan J in Sony v UPC  IEHC 317. Given the plethora of rights potentially affected by blocking orders, Norwich Pharmacal orders or ‘three strikes’ orders (of OSPs, customers and third parties), a substantive proportionality analysis is necessary to ensure that whatever order is made achieves a legitimate objective and does not unduly prejudice the competing interests of stakeholders.
Fair Remuneration for Authors/Artists
Finally, the Conference turned to the perspective of authors/artists, with ‘fair remuneration’ being the primary issue for analysis. An overview of the Fair Music Production was offered by Allen Bargfrede. In this study, they asked the question whether current compensation structures in the industry are fair and whether technology has a role to place to deal with some of the challenges associated with payment. With music the sector is moving towards a pay as you go model from a pay up front model. Additionally, it is difficult to locate rights-holders in order to licence and pay for content, this means that revenue goes into the ‘black box’ where larger companies win big on pay-out due to their larger market share. Ultimately Allen Bargfrede concluded that due to a lack of auditing and reporting, it is very difficult to compare models in practice. Better standardisation of data and increased reporting obligations are just some of the requirements needed in order to move towards a more transparent sector. Victor Finn of IMRO (the Irish performing rights organisation) emphasised the importance of payment for content so that artists can be rewarded and continue to be creative and innovative. Where we are seeing dominant platform services, we are also seeing unfair remuneration. He endorsed a model of having a free tier of content that would then require subscription in order to access further content tiers.
Throughout the day, the panels and experts pointed to many uncertainties and highlighted many aspects of European copyright law which are in need of reform. While the EU Commission is making progress, it appears that the speed of both technological developments and consumer expectations in this area are moving a lot faster. It is in the interests of all parties to foster a regime where intermediaries have clarity as to their role, rights and responsibilities. Allowing cross-border access to content is also consistent with the concept of a ‘single market’, as well as being in the interests of consumers, if only for the purpose of avoiding cross-border ‘House of Cards‘ spoilers!
Daniel Harrington & Claire Rush