Big Rights Holders Favour Status Quo In EU Copyright Over Reform 09/12/2015 by Monika Ermert for Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)BERLIN – Big rights holders and their attorneys do not yearn for a reform of European Union copyright. Participants in last week‘s Pan-European Intellectual Property Summit in Berlin discussed concerns about the potential extension of the rules of origin to the internet, the CabSat directive and successful litigation against intermediaries in enforcing copyright. On 9 December, the European Commission will publish the first of a series of proposals to renovate EU copyright regulation, to align the 14-year-old legislation with the single digital market strategy. Representatives of film studios, publishers, collecting societies and streaming services at the IP Summit discussed concerns about potential consequences. Most Dangerous Proposal Berlin IP Summit intermediary liability panel Portability will be one of the first issues to be addressed by the Commission’s new copyright package. Consumers could be allowed to migrate from one content service provider to another instead of losing movie or music content when a provider is going out of business or they just wanted to use a competing service. “Can you move from Sky (TV), can you take content with you?,” were questions to answer, said Louise Bagnall, vice president, legal & business affairs, Warner Bros UK. She spoke on the panel, “How to Manage Existing Business Models in Response to Technological Changes?” “We need to ensure optimal consumer experience,” Bagnall said, noting at the same time that users often had only licensed for use and not ownership. “That is in the fine print. But certainly who cares to read the fine print.” Also there could be besides technical problems privacy issues given the need for strong authentication. “It is not tested for somebody to step into the role of the service provider,” she said. Access to one’s content not only from home is another issue the Commission is expected to tackle in the first documents. While geo-blocking has been excluded for now – a consultation on it is still open until 28 December. So far, territoriality has been defended successfully by lobbyists, and the IP Summit participants also heard during the panel on “The Principle of Territoriality in an International Copyright Framework.” “The Commission stepped away a little bit from its original pushy demands on cross-border access,“ welcomed Katharina Hiersemenzel, copyright policy counsel, EMEA, of the Motion Picture Association, referring to the alleged leaked text of the expected first proposal (see here). “The most dangerous part” of the package, according to Hiersemenzel is “the satellite and cable directive.” It could, she explained, extend the country of origin principle to the Internet, equating to “cross-border access through the back door.” The IP lawyer contrary to a tiny handful of participants of the Summit challenged the need for cross-border access, given that German or French films have no cross-EU market in their opinion. Simon Bathe, EVP for digital distribution at French movie producer and distributor StudioCanal, did not see a big problem to go global: “A lot of producers are taking on platforms that are global scale,” he said, adding, “We are not opposed to a new model as long as we can refinance production.” Commission Proposal Only First Step Julia Reda, member of the Pirate Party in the European Parliament, spoke during a session dedicated to the EU Commission’s Roadmap for Modernizing the EU’s Copyright Framework. She told Intellectual Property Watch that the first draft proposals of the Commission could only be a very first step. On the tepid pace of the review so far, she said, the item was not high enough on the agenda of Digital Economy Commissioner Guenther Oettinger. The need for harmonisation in her opinion is nevertheless urgent as there was not even a common definition of what constituted a piece of art, a copyrighted work or what could be done without permission under copyright limitations and exceptions. Reda gave a lot of examples for problems caused by current legislation, including one she personally experienced recently, when blocked from seeing the first episode of the blockbuster film Hunger Games in English. Trying her luck both on Netflix and Amazon Prime, she had been unable to see the English version. Lack of harmonisation and territoriality is a problem for users and industry. Industry has a hard time creating legal offers, and especially newcomers has difficulties with scale in the fragmented EU copyright market. For them, it is more difficult than for the Netflix company, which could sustain three years of losses. Industry and users, researchers and universities in different EU member states have problems, as they are obliged to follow different rules despite more and more cross-border consortia cooperations. Academic researchers, not the least from the area of IP research, have asked for a harmonised EU copyright for years, she said. The young politician rebuked a question of whether she, as a member of the Pirate Party, would agree to declare that piracy was no solution. “No, I will not make that statement,” she said, explaining that the name symbolized the protest against the equation of copyright infringement with crime and even acts of violence. “We are never going to have a serious and reasonable discussion if we keep comparing simple infringement with acts of crime.” Her concern for the EU copyright reform is that “we are facing already the situation of narcissism of small differences.” Her plea to the EU legislative bodies, and especially the member states was: “We need more flexibility from all sites and countries. To come to an agreement means giving up a few things that individual countries hold dear.” But Reda is also not naive with regard to the difficulties of the undertaking of the EU copyright reform. “There is a big divide,” she said. “There are those who hold copyright reform dear and those how say ‘we are fine’.” Publishers questioned the need, for example. Reda’s notion that copyright also needs simplification to make it understandable for citizens was rejected by the moderator of the session, Ted Shapiro, partner and head of the Brussels office of Wiggin and former copyright industry representative, as impossible. Satisfied with Developments in Intermediary Liability A panel of litigators expressed considerable satisfaction with recent court decisions that marked a shift towards more intermediary liability. Okke Deflos Visser, head of the Legal Department EMEA of the Motion Picture Association, said that rights holders “more and more are able to block the biggest infringers” and “website blocking leads to an increase of legal consumption.” Successful court actions resulted in a recent a “breakthrough in Germany,” according to the panel moderator. The Hamburg District Court in a judgment finally accepted Störerhaftung (third party intermediary liability) “after ten years of trying.” In two years’ time the experts also await the Court of Justice in the European Union (CJE) on e-lending and digital exhaustion. The court is expected to rule if the Pirate Bay is in itself an infringer and making available copyrighted content – or if not, it can still be obliged to block infringers and held liable. The court was referred to the European judges by the Dutch Court in The Hague which also a year ago had referred several questions on e-lending and copyright. Long since, professional litigators have taken aim at a new intermediary. Deflos Visser said there is an “elephant in the room,” which is Google. “If they would not list the sites where pirated content can be accessed, they would not show up,” he explained. There have already been court rulings, for example, a French High Court decision of 2013 that obliges Google, Bing, Yahoo, and French search engine Orange to delist 16 file-sharing sites that offer pirated films, including Dpstream.tv, Allostreaming, Fifostream and Allomovies. Also the right to be forgotten ruling against Google illustrated that Google is “not an innocent intermediary.” Another important tool, instead of website blocking, according to Ronald Brohm, director of the anti-counterfeiting network REACT, is cooperation with internet domain registrars. Here, too, situation has improved, he reported. Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Monika Ermert may be reached at firstname.lastname@example.org."Big Rights Holders Favour Status Quo In EU Copyright Over Reform" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.