Copyright Reform in the European Union: Big Changes Announced, but are They Possible?

The new European Commission President, Jean Claude Junker, included in his October 22nd inaugural speech as his second priority an “impulse to Europe’s Digital Single Market”, which should include “modernising copyright rules in the light of the digital revolution and changed consumer behaviour”.

This statement was later turned into a specific mandate, in identical words, for the new Vice President for the Digital Single Market, who (as all his colleagues) started his office in November 1: he has received the mission of “Steering and coordinating, within the first six months of the mandate, ambitious legislative steps towards a connected Digital Single Market, notably by (…), modernising copyright rules in the light of the ongoing digital revolution – taking full account of Europe’s rich cultural diversity”. And an identical mandate has also been given to the new Commissioner for Digital Economy and Society, the German Günter Oettinger.

What is this about? The main issues at stake were presented by the European Commission at an Open Consultation, which received the largest number of replies for a similar process in the history of the European Union. Those replies, summarized in a single most interesting document, show to what extent this is a divisive issue for consumer organizations, rights holders, institutional users, ISPs, broadcasters and public authorities.  A White Paper presenting the Commission’s proposals for such a reform, is expected at any moment, once the new team in charge has started their job. But there are strong signs about what is going to happen: for example a most symbolic move has taken place, as the three regulatory and policy Units within the Commission with responsibility for this issue (Copyright, Internal Market and Media), which in the past had created some policy balance from different perspectives, have all been brought under the single authority of a much stronger new Directorate General for Communications Networks, Content & Technology (DG Connect).

The most important issue at stake here, is the conflict between the declared objective of creating a strong European single digital market (which is assumed as a huge potential source of jobs) and the fact that copyright remains strictly territorial, divided in 28 Member States. And as a natural consequence, so does licensing, resulting in the imposition to users of geo blocking restrictions in their access to online content: movies, sports, and broadcasting in general. Can we imagine all that being replaced by a newly unified European copyright territory? Are there other intermediate solutions, such as the “portability of services” in cross border access?  

A recent (November 11) hearing at the European Parliament Committee for Legal Affairs showed how difficult any legislative action will be. But it also confirmed the Commission’s resolute will to move forward with a legislative proposal in less than a year from now. In which terms? Nobody knows for now: it remains to be seen how far-reaching it can be and in what form and how quickly any changes can be enacted.