Legislative intervention
Rights in online transmissions
Under this option, it could be clarified in a legally binding manner that, in the context of the InfoSoc Directive, the principle of exhaustion applies to copies acquired via download-to-own services in the online environment (to the extent required to achieve a functional equivalence to the “physical world”). In addition, a mandatory copyright exception that explicitly covers linking and browsing could be introduced. As to the reproduction and making available rights, two alternatives can be envisaged:
Alternative a
This would oblige right holders always to authorise, or transfer the right to authorise, both the reproduction and making available rights together (“bundling of rights”) for the purpose of online transmissions. Transitional provisions would have to be introduced to allow for the adaptation of existing contracts and mandates to collecting societies and the compatibility with the EU and the Member States international obligations further accessed.
Alternative b
This would entail the redefinition of the reproduction and making available right so that one becomes incidental to the other, leaving only one right applicable to digital transmissions. As a consequence, for example a download-to-own online service would, only require the clearance of the reproduction right. Transitional provisions would have to be introduced to allow for the adaptation of existing contracts and mandates to collective management organisations.
Enforcement
A key element of the reform would be to properly define the concept of “commercial scale or purpose”, in order to use it as a criteria to reinforce the involvement of intermediaries while ensuring that the focus of enforcement is not put on individual users acting without any commercial purpose. This should happen in compliance with fundamental rights, including freedom of expression, data protection and procedural safeguards, including requirements of clarity and foreseeability of the law limiting such fundamental rights.
Registration, rights ownership and licencing
Sub-option a
This would aim to establish a system of rights registration in the EU, resulting in a central database for rights ownership, as well as recording of subsequent rights transfers. Potential users would be able to use the registration system as a tool to determine which works are still protected under copyright, and to determine which right holders they need to contact in order to obtain a licence. Right holders, on the other hand, could use registration entries as evidence in contractual negotiations or litigation. However, for the avoidance of doubt, registration would not be a prerequisite to enjoyment of copyright protection as this would be incompatible with the “no formalities” rule in the Berne Convention.