EU Picks Up Pace On Copyright Licensing, Private Copying, Unitary Patent

European efforts to resolve three vexing intellectual property issues – copyright licensing, private copying levies and a unified system for granting and litigating patents – are gaining pace in the public and private sectors and could bear fruit next year.

One of the most intractable issues so far has been how to streamline licensing of copyrighted content online and off.

One potential solution, according to the May 2011 UK Hargreaves Review of Intellectual Property and Growth (IPW, European Policy, 31 August 2011) is the creation of a “Digital Copyright Exchange” (DCE), a network of databases offering a common platform for rights licensing. On 22 November, UK Business Secretary Vince Cable appointed former Office of Communications Deputy Chairman Richard Hooper to look into its feasibility.

A DCE could lower licensing costs and make it easier for consumers to access copyrighted material, Cable said. A “global first,” it could allow rights owners to determine the terms on which their works are to be made available for others to use and let consumers find rights holders quickly for licensing or investment deals, he said. But “the solutions are not straightforward,” he said.

Hooper said he would start by asking people across and outside the creative sector what licensing barriers they face and then try to produce “appropriate industry-led solutions” that respond to Hargreaves’ vision. His report to the government is due in summer 2012.

The feasibility study will not “unleash the potential for the market for trading in rights in digital content” but it is a step in the right direction, UK digital media lawyer Laurence Kaye wrote on his blog. Rights exchanges are already developing in the audiovisual, published and other creative industries, he said. What’s missing is the “glue” that makes them all speak to each so rights can be traded on a machine-to-machine basis, he said.

The European Commission is also trying to revamp copyright licensing. Its 13 July 2011 “green paper” on the opportunities and challenges of a digital single market for online distribution of audiovisual works sought input , among other things, on policy and regulatory options for simplifying rights clearances across borders while ensuring rights holders are paid.

The Commission has not yet posted the responses to the consultation, which ended 18 November, but the Association of Commercial Television in Europe published its comment. Among other things, it urged the EC to consider the “over-arching need to respect” broadcasters’ contractual freedom to distribute their content. No transfrontier barriers exist to acquisition of audiovisual rights, it said.

Many commercial broadcasters belong to the Linked Content Coalition, ACT said. That initiative, by the European Publishers Council, seeks to “build the essential technological framework for cross-media 21st Century” rights management, the group’s project plan [pdf] says. Better online rights data management via a common cross-media standardised communication layer will give partners in the supply chain and end-users better rights information, and facilitate the creation of a “voluntary but effective market for automated and semi-automated rights trading,” it said.

The proposal includes “registries” to manage and deliver data about who manages which rights in which assets; “exchanges” to provide the transactional customer-facing interface between the market and rights users; and the standardised communication layer – metadata, messaging and standard identification – between registries and exchanges to “glue” the system together, the coalition said. Its search for industry participants to fund and deliver the system ends 30 November, with the project expected to launch in January 2012, it said.

Meanwhile, another industry collaboration saw the 28 November rollout of what’s said to be the first European portal for offline mechanical rights (when a piece of music is reproduced in physical form such as a DVD) licensing. The joint effort by IMPALA, the Independent Music Companies Association, and BUMA/STEMRA, the Dutch Collecting Society for Mechanical Music Rights, is an attempt to make rights licensing and administration more efficient for indie music producers and rights owners, the organisations said. Physical sales accounted for over 70 percent of the market in 2010, they said.

Another Shot at Fixing Levies

The Commission has been trying for years to inject some sense into Europe’s balkanised system of imposing fees on digital reproduction equipment such as blank media and computers to compensate rights owners for private copying. On 23 November, Internal Market and Services Commissioner Michel Barnier proposed appointing former commissioner António Vitorino as a mediator on the contentious issue. The stakeholder discussion, which will lay the groundwork for legislation on private copying levies at EU level, will explore possible ways to harmonise the methodology for imposing the fees and the systems for administering them, he said.

There are significant differences among EU states as to the devices on which levies are imposed as well as on what is meant by private copying, Barnier said. The European Court of Justice recently held that governments may set levies only when the equipment is likely to be used for private copying (IPW, European Policy, 25 October 2010). Nevertheless, he said, the different regimes continue to create problems for businesses and consumers, to the detriment of rights holders.

The EC has tried several times to come up with principles on how a levy system should work, Barnier said. The issue is not that creators must receive fair compensation for their work, but that all systems used to collect the payments be organised as efficiently as possible, he said. Discussions are expected to start early next year and be completed by next summer, he said.

Asked why this discussion should work when earlier ones have not, Barnier’s spokeswoman said that given the commissioner’s clear commitment to legislative action, the EC “is convinced that the concerned parties will double their efforts to ‘build bridges.’” Whether the talks are successful or not, they will be extremely valuable at a time when regulation is contemplated, she said. Any future proposal must be grounded on a “deep and up to date understanding of the challenges” posed by this issue in the face of fast-changing technologies, she said. “The mediation process is clearly to the benefit of all stakeholders.”

Vitorino’s appointment was welcomed by right holder groups IMPALA; the Association of European Performers’ Organisations; EUROCOPYA, the European Association of Audiovisual & Film Producers’ Collective Management Societies; GESAC, which represents authors; the International Federation for the Phonographic Industry; and the Society of Audiovisual Authors. The organisations said they are “very much open to discussion on this issue and regret the time that has been lost since the premature closure of the previous dialogue in early 2010.”

Push for EU-Wide Patents Continues

Government talks on unitary European patent protection and a common patent court continue at a 5 December meeting of the Competitiveness Council in Brussels. Members of the council are internal market, industry, research and space ministers.

Officials will debate a package aimed at establishing a common patent system and translation arrangements, the council said. Poland, which currently holds the rotating EU presidency, “is committed to facilitate a political agreement within the Council on the package before end 2011,” it said. Governments have modified the original EC measures by boosting provisions benefiting small and medium-sized companies, it said. The European Parliament is expected to vote on the draft regulations early in 2012, it said.

At the same meeting, ministers will consider how to finance an EU patent court and where it should be located, the council said.