EAO Looks at Exceptions & Limitations
In May, the European Audiovisual Observatory published a report [PDF] on exceptions and limitations to copyright.
The authors sets the scene by looking at the origins of copyright and the rationale behind the exceptions and limitations to copyright (Chapter 1), to then look at the international and European legal frameworks (Chapter 2) and the various national legal frameworks (Chapter 3). The report also examines the role of self- and co-regulation (Chapter 4) and the case law (Chapter 5) in the area of copyright. Finally, the authors give an overview of the state-of-play of EU legislation under the Digital Single Market (DSM) strategy and of the issues that the European Commission decided to leave untouched (Chapter 6).
The report points out, in the context of discussing the issues faced by Film Heritage Institutions in the digitisation of heritage films, that “the extension of copyright exceptions to digital is seen by rightsholders as a threat to the commercial exploitation of their works” (see p. 6ff).
On the text and data mining (TDM) exception in the copyright proposal, the authors consider that (p. 67):
“This is an area where no possible adaptable exception already exists in the European regulatory framework, a circumstance that has obliged the relevant actors, such as universities and research institutes, to resort to licensing solutions and thus bear the often significant transaction costs of the licenses.”
In Chapter 4 on the role of self- and co-regulation, the report also reflects on the ‘Licences for Europe’ initiative, and remarks on TDM that (see p. 45ff):
“researchers (…) considered that only legislative changes, as opposed to a voluntary approach, would allow them to fully address their problems. They pointed out that making TDM subject to specific authorisation in addition to the subscription would expose them to the risk of always being subject, at least potentially, to the different conditions and policies of different publishers.”
The report points out that the DSM Strategy did not follow-up on two issues with exceptions, namely (1) e-lending and (2) the freedom of panorama (see p. 70ff). On e-lending it notes that the EC decided to consider the issue at a later stage due to the then pending case before the Court of Justice of the European Union (CJEU). In the meantime, the CJEU ruled in November 2016 that the notion of lending in the Rental and Lending Directive “covers the lending of a digital copy of a book”.
On freedom of panorama the authors point out that 2016 public consultation shows that “almost all the member states had implemented this exception, but at the same time, how they implemented it could differ widely, thus creating a situation of uncertainty”. However, the report points out that EC considers that for now no exception is needed, and that its sufficient to monitor the regulatory developments in this area.