EuroISPA considers it essential to adapt the current legislative framework to the ambitions and the potentials of the digital economy in the context of a European Single Market. Besides the fight against illegal sharing of copyrighted works - subject to due respect and proper balance of the rights of legitimate businesses and users - EuroISPA intends to support reforms aimed at developing innovative services, availability of licit content and the creation of new business models. To realise an innovative European ecosystem, it is necessary to reform those parts of legislation that were created in the analogue age and no longer reflect the characteristics of an economy that has become digital, including copyright and commercial regulation in general. The modernisation of copyrights and the rebalancing of rights amongst all stakeholders of the content value chain is a necessity, to reflect changing technological conditions and to safeguard civil rights. Enforcement remains at forefront of EuroISPA members’ attention, however such measures should be executed with due legal process and judicial oversight, and should maintain opportunities for technical and commercial innovation and the development of new business models. For many years EuroISPA has been a proactive player in the policy discussions on this subject, and was a driver behind the Notice and Action mechanism that provides an effective framework for the removal of illegal content online. EuroISPA’s innovation and growth committee brings together various Internet services providers with experience and insight on how to make Europe’s copyright framework optimal for the digital age.
Key ongoing dossiers
European Commission copyright reform proposal
Audiovisual Media Services Directive
June/July 2016: European Parliament appoints Rapporteurs for the AVMS proposal
In June the European Parliament appointed both Sabine Verheyen (EPP, Germany) and Petra Kammerevert (S&D, Germany) as the lead rapporteurs for the AVMS dossier. They will play a key role in conveying the Parliament’s position vis-à-vis the provisions contained in the legislative proposal.
At a first exchange of views in the European Parliament in June, Commission representatives provided an overview of key legislative additions to the existing directive, including a new chapter on video-sharing platforms. This chapter was considered by the Commission to be complementary to the e-commerce Directive. Some of the MEPs present focused in their speeches on the responsibilities.
- The European Parliament will hold several hearings on AVMS in September 2016
- The deadline for consideration of the amendments submitted by the different political groups is 13 October 2016
June/July 2016: Group of MEPs write open-letter calling on the Commission to address convent value gap
In June a grouping of European Parliament members from parties across the political spectrum wrote an open-letter in which they called upon the European Commission to address the ‘content value-gap’, which, they asserted, arose from the role of online platforms. The MEPs who signed the letter criticised what they saw as a structural imbalance in revenue flows between content creators/rights holders and online platforms. They therefore called for the existing liability safe-harbours to be redefined such that platforms faced increased liability burdens for copyright infringements on their networks.
The letter can be read here
- In late-September 2016, the European Commission will publish its legislative proposal to reform the EU copyright regime.
June/July 2016: EuroISPA submits public consultation response on ancillary copyright
EuroISPA submitted its response to the European Commission’s public consultation on ancillary copyright and the ‘panorama exception’. The results of this public consultation will feed into the upcoming EU InfoSoc (copyright) Directive legislative revision, which will be launched in late September.
In its response, EuroISPA stressed the negative impact of creating neighbouring rights for publishers in EU copyright law, as it posed a threat to the freedom of information, and, consequently, free flows of information on the Internet, as well as stifling innovation and competition in the Internet economy and the press.
May 2016: European Commission presents its legislative proposal to amend the AVMS
On 25May, the European Commission presented its proposal to amend the Audiovisual Media Services Directive (AVMSD).
The proposal can be found here.
In general, Member States continue to be bound by the rules of the e-Commerce Directive (ECD). Therefore, they are not allowed to impose on providers any general obligation to monitor or to actively engage in fact-finding, without precluding the imposition of monitoring requirements in specific cases.
The EC has further proposed amendments in several areas of the Directive:
- The scope is extended to cover video-sharing platforms, which do not have editorial responsibility for the content they store, but which organise that content, through various means
New Obligations on-demand AVMS
- The proposal introduces an obligation on on-demand AVMS providers to have at least a 20% share of European works in their catalogue and ensure prominence of these works
- The proposal aims to align consumer protection (protection of minors) between TV broadcasters and on-demand services
- Member States are required to ensure video-sharing platforms implement measures to protect minors from viewing harmful content and to protect all their users from containing incitement to hatred.
Country of origin
The Country of Origin (COO) principle is maintained and simplified
- The legislative proposal will be sent to the European Parliament and to the Council for their consideration
May 2016: EuroISPA prepares to finalise response to European Commission public consultation on ancillary copyright
The European Commission is currently undertaking a public consultation on ancillary copyright and the freedom of panorama. The consultation results will feed into the Commission's upcoming proposal to modernise the EU Copyright (InfoSoc) Directive, scheduled to be launched in September 2016.
EuroISPA's response to the consultation is currently under consideration by members. Interested members are invited to consult the Innovation & Growth committee mailing list to contribute to the development of EuroISPA's consultation response.
The public consultation period is open until 15 June.
March/April: EuroISPA co-signs high-level letter on copyright reform
In early April EuroISPA co-signed a stakeholder letter to the European Commission titled “A Digital Single Market for Creativity and Innovation: Reforming Copyright Law without curtailing Internet Freedoms”.
The letter reiterates the need to preserve the existing intermediary liability framework as part of the discussions around modernising copyright.
Members may recall that increasing liability on ISPs for copyright infringements has been a longstanding policy aspiration of rightsholders. Most recently, EuroISPA intervened to push back on the inclusions of such measures in the 2015 European Parliament Copyright Modernisation report.
The letter was addressed to the highest political levels of the European Commission and comes in the context of Commission plans to publish a reform proposal of the EU copyright framework in September 2015.
The open letter can be read here.
March/April: CJEU issues positive Opinion on status of hyperlinks in copyright infringements
- According to the Advocate General of the Court of Justice of the European Union, the posting of a hyperlink to a website which published photos without authorization does not in itself constitute a copyright infringement
- Article 3.1 of the EU Copyright (InfoSoc) Directive provides rightsholders with the exclusive right to authorise or prohibit any communication to the public and making available of their works, by wire or wireless means.
- There has been a longstanding stakeholder dispute as to whether the posting of a hyperlink to a website hosting copyrighted material constitutes a communication to the public, and hence possible grounds for a copyright infringement.
Facts of the case:
- A Dutch website GS Media published hyperlinks to a third-party website in Australia that was using copyrighted material without permission of the rightsholder (Sanoma).
- When the Australian third-party website was ordered to takedown the copyrighted material, the Dutch website GS Media published new hyperlinks to third-party websites hosting the same content. (this process was repeated more than once).
- The rightsholder Sanoma alleged that the Dutch website GS Media infringed copyright by hyperlinking to protected content.
- The Dutch court referred to the case to the Court of Justice of the European Union, noting that the placement of hyperlinks by the Dutch website GS media had made access to the infringing content easier for users.
The CJEU Advocate General’s Opinion:
- Hyperlinks placed on a website greatly facilitate the discovery of other websites, and protected works available on those sites, and as a result offer users of the first website faster and more direct access to those works.
- However, hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public when they are already freely accessible on another website, and only serve to facilitate their discovery.
- The actual act of ‘making available’ is the action of the person who effected the initial communication.
- Consequently: hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be classified as an ‘act of communication’ within the meaning of the EU Copyright Directive.
- The hyperlinker’s motivation and the fact that it knew or should have known that the initial communication of the photos on other websites infringed copyright are not relevant.
- This reasoning is based on the premise that the photos were ‘freely accessible’ to all internet users on third-party sites.
- However pursuant to the CJEU ruling in Svensson and Others, if a hyperlink makes it possible for users of the site on which it appears to ‘circumvent restrictions’ put in place on third-party websites to limit access to protected works, the hyperlink in question constitutes an indispensable intervention without which those users could not enjoy the works – hence liable for a copyright infringement.
- In that context, any other interpretation of the notion of ‘communication to the public’ would considerably impede the functioning of the internet and would infringe one of the principal objectives of the Copyright Directive, namely the development of the information society in Europe.
- The Opinion of the CJEU Advocate General is not binding on the court, and is designed to provide reasoned independent advice to the Court. A full binding ruling of the Court will be delivered in the coming months (we will confirm the date).
Potential impact on enforcement obligations for intermediaries:
- The European Commission will publish a policy white paper on platforms and illegal content in June 2016.
- The European Commission will propose a revision of the European Copyright framework in September 2016.
- In both these discussions, rightsholders are seeking to redefine the definition of “Communication to the Public” in order to make intermediaries liable for hyperlinking to copyright-infringing content.
- This Opinion, if upheld, will heavily undermine the calls to redefine Communication to the Public, particularly as the Opinion notes how fundamental hyperlinking is to the European Information Society.
The Court’s press release is found attached and the full Opinion can be read here.
March/April: European Commission launches public consultation on Ancillary Copyright and Panorama exception
The European Commission has launched a public consultation on the role of publishers in the copyright value chain (i.e. ancillary copyright) and on the 'panorama exception'.
- Understanding the challenges faced by press publishers in the digital environment vis-à-vis copyrights
- Understanding the potential impact of ancillary copyright on the publishing value chain (including categories of Internet intermediaries)
- Understanding how the ‘freedom of panorama’ exemption currently operates across EU Member States.
- The European Commission has faced sustained calls from some stakeholders to include ancillary copyright provisions in the upcoming Copyright Modernisation initiative.
- A copyright modernisation proposal will be launched in September 2016, and the results of this public consultation are likely to define whether ancillary copyright will be included within the initiative.
- The consultation period is open until 15 June 2016.
- Secretariat is currently working on a draft response for members.
February 2016: EuroISPA features in European Parliament Content Portability briefing
The European Parliament has released a background briefing on the proposed EU Regulation on Content Portability, that will soon open for discussion within the EU Institutions.
EuroISPA is specifically mentioned in the briefing for MEPs, regarding the position we expressed on the proposed Regulation through a December press release.
The relevant section:
[Several stakeholders stressed, on the contrary, that the proposed legislation does not go far enough, and called for more wide-ranging measures to ensure cross-border provision of online services. EuroISPA, an association representing European Internet Service Providers (ISPAs), welcomed the proposed regulation but called on the Commission to present a more ambitious reform of EU copyright rules that allows for the emergence of new business models to supply digital content] (P.9)
The full briefing on the Regulation can be read here.
EuroISPA’s original press release on the subject can be read here.
February 2016: EuroISPA leads organising committee of European Parliament Content Portability event
In early February EuroISPA led the organisation of a policy dinner to discuss the proposed Content Portability Regulation in the European Parliament.
The breakfast was hosted by the European Internet Forum of which EuroISPA is a member. The EIF brings together influential MEPs and external stakeholders to discuss the hot topics in EU digital policy. EuroISPA is represented on its board by Innocenzo Genna.
You can find the full report and a video recording of the dinner event here.
January 2016: European Commission provides timeline for online content-related Digital Single Market initiatives
On Tuesday 19 January, Andrus Ansip, European Commission Vice-President for the Digital Single Market (DSM), set out the Commission’s timeline for copyright-related proposals emanating from the DSM Strategy in the European Parliament during the debate on the report ‘Towards a Digital Single Market’.
Commissioner Ansip mentioned the following regarding the Commission’s timeline:
‒ Proposal on improving cross—border access to digital content;
‒ Proposal on exceptions and limitations (e.g. libraries, educational exceptions, disabled people and text and data mining);
‒ Proposal on the ‘follow the money’ principle (i.e. copyright enforcement);
‒ Proposal on the review of the Satellite and Cable Directive; and
‒ Proposal on the review of the Audiovisual Media Services Directive.
December 2015: European Commission unveils first round of proposals to modernise copryright
On 9 December, the European Commission published its Communication on Modernising Copyright and its proposal for a Regulation on Cross-Border Content Portability.
EuroISPA’s press release, welcoming the content portability proposal but calling for greater ambition in modernising copyright, can be accessed here.
The proposal for a regulation on content portability will enter into the EU co-decision procedure the spring 2016. The Commission is expected to publish legislative proposals for copyright modernisation in spring 2016.
December 2015: Over 80 European Parliament MEPs write to Commission to push back on ancillary copyright
In December, 83 MEPs from six political groups in the European Parliament co-signed an open letter to the European Commission to urge the EC not to introduce EU ancillary copyright laws or copyright rules around hyperlinks. This letter is an initiative from the Digital Agenda Intergroup Steering Committee.
In the letter, the MEPs note that they:
‒ are “deeply concerned about the Commission’s Communication [on modernising copyright]”;
‒ consider that the references in chapter 4 are “directly and unequivocally pointing towards the first steps towards the introduction of an ancillary copyright for the benefit of press publishers”;
‒ urge the Commission to “remain focused on a reform of copyright rules that strengthens the European Digital Single Market, fosters creativity and research while being aware of the dangers of undermining the foundations of one of the greatest revolutions in Information Technology”;
‒ consider that “there is no ambiguity in the interpretation of EU copyright rules with regards to content that is both legal in nature and freely accessible on the Internet”; and,
‒ “kindly advise the Commission to take into account the Parliament’s rejection of the notion of ancillary copyright and to clarify the direction of the planned examination”.
The letter can be read here.
November 2015: ECJ considers online video platform to be comparable to an “on demand media service” covered by the AVMSD.
On 21 October the ECJ issued a Preliminary Ruling on on New Media Online GmbH v Bundeskommunikationssenat. You can find the link to the full ruling here.
In the ruling, the Court decided that the online video platform could be comparable to the form and content of television broadcasting. Therefore, the concept of “programme” established in Article 1(1)(b) of Directive 2010/13 includes the provision of videos of short duration consisting of local news bulletins, sports and entertainment clips.
The ECJ referred the case to the Austrian court. They will have to decide whether the online video service is “ancillary” to the main website, or if by the contrary, it can be regarded as an audio-visual media service. Depending on the decision of the Austrian court, the provisions of the AVMSD could be applicable to a large number of online platforms that include video-streaming services as part of their business model.
September/October 2015: EuroISPA submits its response to the AVMSD consultation
The European Commission recently undertook a public consultation as it seeks to gather stakeholders’ opinions ahead of a review of the EU Audio Visual Media Services Directive (AVMS). The consultation focused on the scope of the Directive, the graduated regulation system and the Country of Origin principle.
EuroISPA successfully submitted its response to the consultation on 1st of October.
The Commission aims to publish its results in late 2015.
The results of the consultation could lead to the review of the Directive in 2016.
The results of the consultation will also feed the Commission’s proposal to modernise the EU copyright framework that will be published in early 2016.
July/August 2015: Commission seeks stakeholder perspectives ahead of Audiovisual Media Services Directive review
The European Commission has launched a public consultation as it seeks to gather stakeholders’ opinions ahead of a review of the EU Audio Visual Media Services Directive (AVMS).
The consultation will seek views on the impact of the current Directive and on policy options for the future in the following areas:
- The scope of the application of the Directive: As stands the Directive does not apply to Internet services hosting user-generated content.
- The graduated regulation system: In specific fields rules are currently more stringent for broadcast services than for on-demand services.
- The Country of Origin principle.
The public consultation follows the Commission’s Green Paper Preparing for a Fully Converged Audiovisual World.
The consultation is open until 30 September 2016.
The Commission will launch a review of the Directive in 2016.
More information here