Diesen Beitrag in Deutsch lesen
Study – Paul Keller
The above analysis of key provisions of the DSM directive shows that overall the Directive represents a substantial improvement for institutions from the research, education and cultural heritage sectors operating in the digital environment. Most of the provisions leave relatively little space for diverging implementations by the Member States (a welcome change from the approach of the InfoSoc directive) but there are a number of mainly secondary issues that can significantly improve (or worsen) the position of public interest organisations. Recommendations on how Member States can best deal with these issues are included throughout the text above in bold. In some cases (notably with regards to the TDM and OOCW provisions and in the context of implementing Article 17) there is also a continued need for the European legislator to intervene in order to avoid additional fragmentation of the copyright system.
In addition to these observations and recommendations related to individual Articles of the Directive two themes that are woven throughout the fabric of the Directive that should be on the radar of the European Legislator in the coming years. The first one is the continued need to fix the fragmentation of the user rights in the EU. The second one is the emerging issue of investing into registration infrastructures to improve the functioning of the EU copyright framework.
Fixing the fragmentation of exceptions and limitations
As outlined though this document the DSM directive does not contain dedicated steps towards reducing the fragmentation of user rights in the European Union. The existing system of optional exceptions and limitations established by the InfoSoc directive remains in place. In a welcome deviation from this approach all the new exceptions in the DSM DIrective are mandatory which prevents further fragmentation.
As outlined in the section on exceptions and limitations above (and specifically the section on Article 25) the fact that the Member States have to open up their copyright laws in order to implement the directive provides them with the opportunity to implement further (so far unimplemented) exceptions from the InfoSoc Directive and to strengthen or modify existing ones to better reflect the needs of beneficiary organisations. While this can theoretically lead to a harmonized set of 12 key exceptions The 5 new exceptions from the DSM directive (TDM, online educational use, preservation and access to OOCWs) plus the 5 exceptions highlighted in the section on Article 25 (incidental inclusion, … Continue reading that would provide a minimum level of guaranteed user rights that can be enjoyed by citizens across the EU, this is a relatively unlikely outcome of the implementation process. On the Member States level EU wide harmonisation of user rights is generally not a political objective, in many Member States a “pure” implementation of the rules of the DSM directive will be more straightforward in terms of legislative procedure The only EU member state that has so far published a complete implementation act, the Netherlands, is restricting itself implementing changes required by the DSM directive. According to the … Continue reading and in many member states there is substantial political opposition to introducing additional exceptions.
Still from the perspective of the European legislator further harmonisation of exceptions and limitations must be a key policy objective. A situation in which the rights of users vary depending on the Member State from which the access the Internet undermines the idea of a Digital Single Market and is contrary to the principle of equality before the law.This means that the European Parliament should closely monitor the implementation of exceptions and limitations in the Member States and should continue to call attention to the problem of fragmentation.
One problem with this is that there is currently no official, comprehensive and up to date overview of the implementation landscape. The only unofficial source of such information, the above mentioned online resource www.CopyrightExceptions.eu, dates from 2016 and is not actively maintained at this point in time The website was built by the Dutch CSO Kennisland, which stopped working on copyright issues at the end of 2018. Since then the website is in maintenance mode.. As part of an effort to highlight the ongoing issue of fragmentation of user rights in the EU the European Parliament could explore ways of supporting the continued operation of this platform. Alternatively the European Commission should be requested to publish up to date information on the implementation of exceptions and limitations by the member states on a public single online portal provided by the Commission.
Building a registration infrastructure
The second theme that deserves forward looking attention from the EU legislator is the emergent trend of building registration infrastructures to improve the functioning of the EU copyright framework. Registration of work as a prerequisite for granting copyright protection is in violation of Article 5(2) of the Berne Convention. This fact is frequently used to shut down discussions about the benefits of registering copyrighted works. It is however undisputed that registration of basic copyright information (especially the claims of authorship/claims of owning the copyright in a work) would substantially improve the functioning of copyright in the digital environment where the marginal costs for registering such information and subsequently accessing are zero.
This fact is implicitly recognized by the DSM directive which flirts with forms of registration in three different provisions. This concerns the ability for rightholders to reserve the right to make reproductions for the purpose of Text and Data Mining in Article 4(3), the ability for rightholders to opt out from the Out of Commerce Works provisions in Article 8(4) and the need for rightholders to provide “relevant and necessary information”to OCSSPs in order to prevent use of their works by users of these OCSSPs.
While none of these provisions directly mandate the creation of a registration system, the “public single online portal” for OOCWs to be maintained by the EUIPO comes very close. As discussed in the section on Article 17, the mechanisms foreseen in Article 17(4) can best be implemented by storing the “relevant and necessary information” in a single publicly accessible database. In both instances article 5(2) of the Berne convention does not stand in the way of building a registration system as these registration systems would only make certain ways of exercising copyright conditional on the registration of registering claims to work in a public database.
In both instances a well functioning and well designed public database/portal will be an essential element of a successful implementation of the respective provisions of the DSM directive. Given that such databases only make sense if they operate on the European level, the European Union Or one of its executive agencies like the EUIPO which as noted above does have substantial unused financial resources that could be employed for this purpose. will need to play a key role in designing, building and maintaining them. Given that large scale public registration systems are a novel concept within EU copyright law that nevertheless has the potential to significantly improve the functioning of the copyright framework under conditions of ever increasing digitization, the European legislator should closely monitor these developments and explore the potential of registration systems to achieve a truly modern copyright system. Ultimately such as system should offer a high level of copyright protection to rightholders who need it while reducing unnecessary barriers to accessing works that do not require the full protection of copyright.
|↑1||The 5 new exceptions from the DSM directive (TDM, online educational use, preservation and access to OOCWs) plus the 5 exceptions highlighted in the section on Article 25 (incidental inclusion, illustration for teaching and scientific research, access for research and private study, reproductions by CHIs and freedom of panorama) plus the two de facto mandatory exceptions from Article 17(7) (quotation and parody).|
|↑2||The only EU member state that has so far published a complete implementation act, the Netherlands, is restricting itself implementing changes required by the DSM directive. According to the explanatory memorandum this is due to the fact that a pure implementation act can be adopted via a simplified legislative|
|↑3||The website was built by the Dutch CSO Kennisland, which stopped working on copyright issues at the end of 2018. Since then the website is in maintenance mode.|
|↑4||Or one of its executive agencies like the EUIPO which as noted above does have substantial unused financial resources that could be employed for this purpose.|