Digital technologies, widespread broadband connections and reliance on the internet in daily life have transformed the way creative content is produced, distributed and used. The internet has become a key distribution channel. Business models unheard of only 15 years ago and new economic players like online platforms have become well established and today online services are a mainstream channel for consumers to enjoy creative content, alongside physical formats like books and DVDs. Making copies of content digitally is easy and quick. People often expect access to digital content on multiple devices, anytime and anywhere in the single market. When this does not happen, they find it hard to understand why. EU copyright rules need to be adapted so that all market players and citizens can seize the opportunities of this new environment. A more European framework is needed to overcome fragmentation and frictions within a functioning single market. Copyright rewards creativity and investment in creative content. A copyright framework that offers a high level of protection is the basis of the global competitiveness of Europe’s creative industries. Along with the internal market principles of free movement of goods and services, EU competition rules, and our media and cultural policies, copyright is an integral part of the set of rules which govern the circulation of creative content across the EU. The interaction between copyright and these other policy areas determines how value is generated from the production and dissemination of works and how it is shared among market participants.
Rights that cannot be effectively enforced have little economic value, particularly when infringements occur on a commercial scale that free-rides on the work and investment of creators, the creative industries and legal distribution services. Such commercial-scale infringements are currently very frequent and harmful, not only to right holders but also to the EU economy as a whole. A ‘follow-the-money’ approach, which sees the involvement of different types of intermediary service providers, seems to be a particularly promising method that the Commission and Member States have started to apply in certain areas. It can deprive those engaging in commercial infringements of the revenue streams (for example from consumer payments and advertising) emanating from their illegal activities, and therefore act as a deterrent. Furthermore, the current legal framework seems not to be fully fit for the challenges of the digital single market, particularly with regard to applying the right of information, injunctions and their cross-border effect, calculating damages and reimbursing legal costs. It is also important that systems that allow illegal content to be removed by hosting services, once identified, are effective and transparent and prevent legal content from being taken down erroneously. These systems, which apply horizontally to all types of illegal content, are very relevant for the enforcement of copyright, as copyrighted material accounts for a large portion of the content subject to notices.
The Commission will take immediate action to engage, with all parties concerned, in setting up and applying ‘follow-the-money’ mechanisms, based on a self-regulatory approach, with the objective of reaching agreements by spring 2016. Codes of conduct at EU level could be backed by legislation, if required to ensure their full effectiveness. As regards the legal framework for the enforcement of intellectual property rights, including copyright, the Commission will assess options and consider by autumn 2016 the need to amend the legal framework focusing on commercial-scale infringements, inter alia to clarify, as appropriate, the rules for identifying infringers, the application of provisional and precautionary measures and injunctions and their cross-border effect, the calculation and allocation of damages and legal costs. The Commission is also carrying out a comprehensive assessment and a public consultation on online platforms, which also covers ‘notice and action’ mechanisms and the issue of action remaining effective over time (the ‘take down and stay down’ principle).
The full harmonisation of copyright in the EU, in the form of a single copyright code and a single copyright title, would require substantial changes in the way our rules work today. Areas that have so far been left to the discretion of national legislators would have to be harmonised. Uniform application of the rules would call for a single copyright jurisdiction with its own tribunal, so that inconsistent case law does not lead to more fragmentation.