Copyright Reform and Necessary Flexibilities

Guido Westkamp 0 1 0 G. Westkamp (&) LL.M.; Professor, Dr.; Co-Director, Queen Mary Intellectual Property Research Institute Centre for Commercial Law Studies Queen Mary University of London , London, UK 1 Published online: 10 July 2014 Max Planck Institute for Innovation and Competition , Munich 2014 There exists widespread criticism concerning the currently foreseen reform of the 2001 Copyright Directive. The European Commission had, amongst other initiatives, invited a range of stakeholders as part of the ''Licensing for Europe'' initiative;1 however, some stakeholders, including library and archive associations, have recently withdrawn from the negotiations, patently articulating concerns that the consultations had concentrated primarily on the issue of licenses, rather than on whether limitations should be strengthened. The departure of these stakeholders illustrates that more is required than negotiating payment terms - a complete rethinking and reform of the Directive based on a fundamental concept permitting an evolution of copyright law commensurate with the rapid advances in technology and, thereby, the ever-changing needs to recognise interests in competition and access to works. In fact, the Directive itself was very arguably modelled on a vision that strengthening existing rights would facilitate the creation of online business models. The drafters of the Directive certainly had in mind that existing right holders should be offered strong protection in order to incentivise models for the digital dissemination of works, and here clearly the (then) concerns of the music and film industries played a vital role in shaping the normative hierarchy underscoring the Directive's spirit. This is clearly visible in both the Recitals, which caution Member States to keep digital limitations restrictive, and also in the Directive's main part where right holders enjoy unprecedented exclusive rights - including a broad right of reproduction that covers temporary copies and a similarly extensive 1 See on text and data mining, the Statement of Commitment by publishers at http://ec.europa.eu/ licences-for-europe-dialogue/sites/licences-for-europe-dialogue/files/10-Text-data-mining.pdf. - right of communication to the public, and in addition the general exclusion of limitations vis-a-vis applied technological protection measures, especially as regards online services. Conversely, institutions such as libraries and archives, but also schools and universities, face incredible difficulties and legal uncertainties as regards the use of works. The only exception is Art. 5(3)(a), which indeed allows a generous use of works for purposes of illustrating teaching; yet even here Member States have, mainly, chosen not to fully utilise the flexibility offered and have instead opted for, sometimes, rather restrictive educational limitations or maintain a system of licensing where educational institutions are required to obtain permissions from collective management organisations. In some jurisdictions, such as Germany and Austria, educational uses have fared better, both in terms of scope and ease of access. In Austria, for example, an agreement has been reached under which the state actually pays for such uses; in Germany, educational uses in schools are similarly subject to a broader statutory license. But overall, access to digitised works remains difficult, and naturally so as regards any attempt to obtain permission to use works which is subject to licensing in other Member States. Concurrently, the use of works in archives or libraries remains restrictive: digital technology, of course, permits the use of libraries and archives (and related institutions) to offer access to their holdings precisely for the benefit of institutions such as schools and universities. It would be a tremendous advantage if, for instance, a school or university was provided with a choice of institutions, at home or abroad, who could offer access on the basis of individual licenses, much in the same way as today music and films are disseminated online. The key for establishing such models lies in rethinking how the state allocates, ultimately, the advantages of digital technology. At this juncture, the dual nature of copyright limitations comes to light: first, in a more traditional sense, as norms providing an exception supported by a particular public policy interest; but second as a normative mechanism creating competition between the various interest groups that today influence, to varying degrees, the copyright debate: authors, right holders, service providers, archives and libraries, and institutional or private end users. Clearly, exceedingly complex obstacles remain. These obstacles emerge both from (international and European) copyright law-making as well as from the complexities of facilitating some consensus between the various interest groups. International copyright law, especially as regards the rights of producers, has incre (...truncated)