Next week, European policy makers are announcing plans to overhaul European copyright rules, and the resulting laws could have serious implications for digital content creators, filmmakers, and other visual artists. These new announcements are part of the EU’s Digital Single Market Strategy, in which the EU is aiming to tear down the regulatory walls that currently limit the 28 member countries from operating under one single rule of law. The Digital Single Market Strategy essentially has three main pillars:
- Creating better online access to digital goods and services
- This includes promoting cross-border delivery services to promote greater e-commerce, tackling geo-blocking which limits online service providers, and simplifying VAT rules.
- Creating an environment where digital networks can prosper
- This includes assessing the role of online platforms to prevent illegal sharing of content, strengthening concerns about personal data
- Using digital as a driver for growth
- This includes integrating new technologies like cloud computing and arming European citizens with the necessary tools to seek employment in these fields.
Under these new European copyright rules, EU officials argue, the region will finally have a unified market of over 500 million people, leaving no country or citizen behind. But how will these new laws affect artists and digital content creators, who rely on the existing framework to earn a living in a creative field?
One such aspect of the new European copyright rules being launched on Wednesday that will be especially important to digital content creators will reshape how online video and music services are distributed and made available to users via major sites like Google and Yahoo.
Specifically, these new measures would allow Europeans to temporarily view movies and videos they have bought on a digital service – like Netflix, for example – from anywhere within the 28 member bloc. As it currently stands, a Netflix subscriber in France does not have access to his subscription when he is visiting his grandmother in London. While it seems, then, that this might be a quick fix to a simple problem, the effects it will have on the creative community, who often benefit from the old regulations to re-sell and profit from their intellectual property, could be somewhat disastrous. The new European copyright rules could also affect some of the world’s largest tech companies, who currently aggregate online articles into services like Google News.
A History of European Copyright Rules
Obviously, the European Union is fairly new, having only been formed in 1993. Prior to the creation of the EU, each European country functioned as its own separate entity, drafting its own laws, exchanging its own currency, and making it much more difficult for its citizens to migrate to other countries. The EU was created to provide a single market for the free movement of capital, goods, services, and people, and created a single currency system among several other programs.
Prior to the creation of the EU, each country ratified its own copyright laws, however, all European countries were members of the Berne Convention, a treaty created in 1886 that establishes minimum standards for copyright protections, such as the types of works protected, duration of protection, and scope of exceptions and limitations. The Berne Convention also establishes automatic protection once a qualifying work is created, as well as the principles of “national treatment,” in which works originating in one signatory country are given the same protection in the other signatory countries as each grant to works of its own nationals. As we’ve discussed here on Art Law Journal, this means that a creator from Italy entering into an agreement with a director in France is protected by his country’s copyright laws, whether the copyright is being used in his country or abroad.
After creating the EU, it took officials another 10 years to begin making plans for new European copyright rules that would create a single market strategy for copyright protections. The 2001 Directive on Copyright in the Information Society harmonized across the EU Member States the rights of reproduction, distribution, and communication to the public, as well as the legal protection of technical measures and rights management systems. It also included an exhaustive list of limitations and exceptions to copyright, most of which are optional for member states to implement in their national laws.
The new European copyright rules artists and content creators will be most affected by are part of the slow roll-out of the 2001 Directive and Digital Single Market Strategy, and are expected to take full effect in 2017.
How Will the New Measures Affect Artists and Content Creators?
While on the surface it may seem like a unified system for copyright protections would greatly benefit artists and content creators, it also has the power to sufficiently restrict their profitability and additionally limit creative expression as a whole. So how will the new laws work? Europeans who have paid for digital content like movies, music, or electronic books in one European country will have access to the material no matter where in Europe they are physically located. However, companies will have the power to decide whether they want to charge for such usage, depending on the length of time the person spends outside their home market. In essence, it’s kind of like paying for roaming charges on your cell phone.
While individuals and subscribers have applauded these changes since it will make their lives much easier, the grass isn’t so green for artists and content creators. In particular, opponents of the new European copyright rules are concerned that such requirements could restrict what types of films – namely, independent films – secure financing in the region.
Europe’s content creators, film producers, and digital rights holders are concerned that permitting individuals to access content from anywhere in the region can significantly impact their ability to make cross-border deals that enhance their profitability, which could, in turn, lead to a lack of choice among consumers. That’s because the system for licensing films and another content is quite different than in the United States, where films are often distributed nationwide. European content creators typically sell their licensing rights separately in each country and stagger movie openings in order to generate as much hype as possible. Industry executives fear that it may be tough to finance European movies if content creators and producers cannot guarantee returns from selling films separately to each country, which would likely mean that creative independent films wouldn’t have such great chances of being made.
The new measures will also hurt smaller content makers and video-on-demand services who might have trouble competing with behemoths like Netflix or Amazon. The same rings true for publishers of online media, who often include short summaries of online articles in their aggregate news services without paying publishers for access. While some countries have taken measures to prevent the unfair competition, a unified single market strategy would likely prevail over those existing laws.
While the proposed changes must still be approved by the European Parliament and the 28 member states, it’s likely that there are some pretty radical changes afoot in how Europeans share content. Digital content creators, filmmakers, and artists who benefit from the fluidity of the current market and depend on the current licensing scheme to produce and finance their projects may want to consider appealing to their local governments in an effort to prevent – or at least go on the record – about the downside of the new European copyright rules.