An academic perspective on the copyright reform

https://doi.org/10.1016/j.clsr.2016.12.003Get rights and content

Abstract

The recently proposed new Copyright Directive was released on 14 September 2016. It has been described by EU law-makers as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate. In its Communication of 6 May 2015, the EC had stressed “the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter.” The proposed Copyright Directive is thus a key measure aiming to address two of these three issues. However it is not without shortfalls.

We have therefore decided to publicly express our concerns and send an open letter to the European Commission, the European Parliament and the Council to urge them to re-assess the new provisions dealing with mandatory filtering of user-generated content in the light of the CJEU case law and the Charter of Fundamental Rights of the European Union.

In a more extended statement, we examine in details the text of both the explanatory memorandum and the Directive itself.

Our conclusions are:

1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including CJEU case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts.

2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect.

We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council.

Section snippets

Letter to the European Commission – Strasbourg, 30 September 2016

We very much appreciate the effort to engage into a review and re-assessment of the EU acquis. The future of the Single Market will be digital, if it is not already, and it is essential to determine whether the EU acquis still makes sense in this context. This is true in particular given the recent trend: “Digital content transmitted on private networks and hosted on private platforms is increasingly subject to State and corporate regulation,” writes the UN Special Rapporteur on the promotion

A brief exegesis of the proposed Copyright Directive

The recently proposed new Copyright Directive1 was released on 14 September 2016. It has been described as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate, i.e. before the end of 2019. In its Communication

References (0)

Cited by (0)

View full text