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Making European copyright fit for purpose in the age of internet

Commission Européenne - SPEECH/12/785   07/11/2012

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European Commission

Michel BARNIER

Member of the European Commission responsible for Internal Market and Services

Making European copyright fit for purpose in the age of internet

Launch event of the CEPS Digital Forum Taskforce on Copyright in the EU Digital Single Market / Brussels

7 November 2012

Enter Ladies and Gentlemen,

First of all, allow me to thank CEPS, Karel LANNOO, Staffan JERNECK, and also Giuseppe MAZZIOTTI, for this invitation.

The European Single market is celebrating its 20th anniversary. This should not be a pretext for nostalgia.

On the contrary, it is an opportunity to assess and improve the way it works:

  • To make sure it plays its part in the economic, social and technological transformations of the 21st century.

  • To make sure it helps us to deliver on our objective: a highly competitive social market economy.

Is the Single Market working to unlock the potential of the digital economy to the benefit of all ? This is an example of the questions we must ask ourselves.

When it was created in 1992, one million computers were connected to the internet worldwide. In 2016, that number will be 10 billion: 10 000 times more!

In 1992, we never imagined that one day we would be able to read our favourite newspaper, discover new music or watch a film  anytime, anywhere, on any device - a laptop, a tablet or a phone.

We could not imagine the opportunities. Or indeed the challenges that would arise. In particular from a European perspective.

Copyright is at the heart of these opportunities and challenges.

Why?

Because it is the engine behind the diversity, the creativity and the innovation which can be delivered to all of us though internet.

Therefore we must ask ourselves: it is fit for the digital age?

Our legal framework has of course evolved since 1992, including for copyright. The Information Society Directive of 2001 introduced copyright rules for the digital age. And it remains largely valid today.

Does this mean that we have found the optimum balance between:

  • The widest possible access to quality content for Europeans;

  • Fair remuneration for creators;

  • Sufficient incentives for those that invest in creation,

  • And legal certainty for content distributors?

I do not think so.

I am aware of the problems and the frustration of EU citizens when trying to access content on line.

  • Why is it that they cannot access services available in other Member States if they are willing to pay for it?

  • Why is it that too often they cannot watch their home news or favourite TV programs from the moment they step outside their country?

Consumers are not the only ones facing difficulties.

  • Think of newspaper publishers that see the content they produce being used by others to attract consumers on the net and generate advertising revenues.

  • Think of broadcasters that invest heavily in sports rights or other quality content and see their signal distributed in the Internet without their agreement.

  • And finally, think of those entrepreneurs that want to use the Single Market to launch new services and to innovate.

How long will it take the next Spotify or Deezer to obtain the licences they need to launch an online music service?

And what about tomorrow’s European equivalent to Netflix? Will it know where to start to get the online rights for all those European films which are gathering dust on a shelf somewhere?

Do not get me wrong: I am not in the business of blaming copyright for everything that does not work in the Internet.

I am also not in the business of denying that rules need to be modernised and adapted where the evidence is there.

What I want is a more rational debate.

A frank exchange to identify practical and sustainable solutions to precisely-identified problems.

We all know that there are many reasons for these problems. Many have nothing to do with copyright: inadequate broadband capacity, the commercial choices of service providers, the cost of payment services are only a few.

But I am determined to ensure that copyright is not among the obstacles. Copyright cannot be a barrier. It must be an enabler.

I want to ensure that it remains a modern and effective tool:

  • To support creation and innovation;

  • To enable access to quality content across the borders;

  • To foster investment in our economy, freedom of information and cultural diversity.

What do I mean by this ?

First,

I want a copyright framework that facilitates the access of all Europeans to their heritage.

The Internet is a unique chance for a “second life” for works which are simply "out of distribution".

Just think of the "Europeana" project, which went from 2 to 19 million items digitized between 2008 and 2011.

We can make the dissemination of these works easier. We can do it by a combination of limitations to rights – when justified – and easier licensing. Notably via collective management.

Member States should also play their role.

Together with my colleagues Neelie KROES and Androulla VASSILIOU, we have worked to make sure that the key building blocks are there:

  • The Directive on orphan works was adopted just a month ago. It establishes a limitation to copyright with cross border effects, a novelty in the copyright acquis. It will lead to the establishment of a European registry of orphan works. Another important novelty.

    In parallel, the Memorandum of Understanding on Out of Print Books is starting to be implemented: an outstanding example of how an innovative approach to licensing can benefit to all.

  • We also issued a Recommendation to Member States inviting them to step up their efforts for the digitisation of cultural material.

I continue to encourage Member States and stakeholders to make use of these building blocks.

I also believe that arrangements similar to the Memorandum of Understanding are the way forward to facilitate access to the thousands of European films that are forgotten because they are out of distribution.

Secondly,

I want a copyright framework that passes the "Single Market test", making more content available to more citizens, cross-border.

Let’s face it: the digital revolution has not yet lived up to expectations in the European context.

The online offer varies greatly. It depends on the sector – compare the offer of music or games with the offer of films – and it depends on the Member State.

And consumers are often denied access or redirected to their local websites when they try to access content across borders.

But again, let's not be naive. There are numerous reasons behind this lack of cross border access, starting with the commercial strategies of Internet distributors and platforms.

Some of these strategies may be legitimate. Others, as underlined by the Court of Justice in the "Premier League" case, are not.

In any event, the territoriality of copyright, and the complexities of licensing, should not constitute a barrier – or a comfortable excuse – for anyone.

We have taken a very important step forward with our July proposal for a Directive on the collective management of rights.

This directive will address one of the most severe copyright-related difficulties for the cross-border provision of content : the licensing of music rights by collecting societies.

The current fragmentation affects not only music service providers but all those using music as part of their services: broadcasters, providers of online film streaming services, etc. They all need multi-territory licences.

The ball is now in the court of the co-legislators. The European Council asked for swift progress. And rightly so: a Single market cannot be based on a purely national administration of rights.

But we need to push further to improve European citizens' cross-border access to content and the portability of the services they subscribe to at home.

This is a complex issue. But we need to act on it.

I am not here to tell content providers how to run their business. And I am very mindful of the deep complexities linked to the financing of certain premium content such as films.

But it is unacceptable that Europeans are confronted online with the borders we have been dismantling in the physical world for 50 years. As Single Market Commissioner, I cannot accept this.

This is why I want to work with all relevant stakeholders to find concrete solutions on the ground.

I have also asked my services to start assessing whether there is a need for further legislative intervention in this area.

We also need to look at the full implementation of other important Single Market instruments such as the Services Directive.

Thirdly,

I want a copyright framework that provides the right incentives for those that create and invest in content and that ensures the right balance with other policy objectives such as education, research or innovation

We need an equilibrium. Copyright enables rights holders to function in commercial markets. Removing rights goes quite far: it removes rights holders ability to authorise the use of their content, or to gain reward for their investments. So when can a limitation on these rights be justified? And when should users better acquire a licence to use others' rights for their own commercial gain?

I am open to discuss this and to evaluate the need to update our system of limitations to copyright.

I have already done this with the Orphan Works directive. I continue to do it at international level in the context of the current negotiations on a Treaty for the benefit of the visually impaired.

Going forward I want to see if more harmonisation is needed to update the existing limitations and to ensure their cross border effect. For instance does it still make sense that a European library cannot lend a book to someone just because he or she happens to be across a border?

But let me be crystal clear:

I do not share the view of those that think copyright protection should be weakened so others can develop new commercial services free of cost. This would simply amount to legislating for free-riding: shifting wealth from the content industries – many of which are based in Europe creating jobs and paying taxes here – to other industries. This cannot be right.

We need to ensure that bargaining power and the capacity to invest and innovate remain fairly distributed along the value chain. If this is not the case, we all lose, in the end.

The right balance between rights and limitations is one that preserves the necessary incentives for licensing.

Again, I want to discuss with all stakeholders how to create win-win situations. To develop innovative services while respecting copyright and the market opportunities it provides : from "one click" licences for small users to model licensing clauses for text and data mining.

Fourthly, and finally,

A copyright framework that continues to provide incentives must include meaningful enforcement.

With the crisis it is more than ever necessary to eliminate illegal business models that are based on IP infringing activity. This is how we can pave the way for legal offers, especially by innovative start-ups and SMEs. This is also how we transform "informal" economy jobs into real, sustainable job opportunities.

So this is my vision,

A vision in which copyright supports creation, and creation supports distribution and innovation.

To make progress, there can be neither taboo subjects nor miracle solutions: modernising the regulatory framework is not a taboo subject in the same way that exceptions to the exclusive rights of authors are not miracle solutions.

The resolution of many of the problems I have referred to remains in the hands of the main actors in the market. I want to work with industry, and I want industry to work together. To redouble our efforts. This is why I will propose to launch a new partnership with industry, "Licensing Europe": to deliver concrete progress. From mapping the problems to delivering pragmatic solutions.

We want to guarantee European citizens' access to quality content.

We want to make it possible for creators to make a living from their work and for service providers to propose innovative business models.

To achieve this we must base our proposals on precise data and serious analysis. And we must engage all parties concerned in the process, in a spirit of partnership.

So I very much welcome the CEPS initiative to set up a task force on copyright in the digital single market. I am convinced that it will be a very relevant input in our work and I will closely follow the course of its discussions.

We will also be discussing these issues soon with my fellow Commissioners. We need to agree on the best way forward between now and the end of our mandate.

So my recommendation at this point is simple: watch this space!

Thank you for your attention.


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