In September, the European Commission revealed its plans to modernise EU copyright laws. “Why is that important for me?” you might think. Fair point. For most consumers copyright law does not top the list of their daily concerns.
But think of it this way: we all read news online, share videos, post on Twitter or Instagram, write blogs, subscribe to music streaming services and watch films on Netflix or sports via a broadcaster’s website. More than ever, we have the possibility to explore new cultures and interact with peers across the globe.
However, there is a fundamental flaw in the system: you, as a consumer, do not have rights under copyright law and this situation deeply affects how you access and use creative content online.
Let me give you some examples: how often have you seen the message “sorry, this content is not available in your country” when trying to watch a video on a social media platform? Or “we have taken down your video because you don’t have the authorisation to use that song”. Or been frustrated when your digital TV subscription blocks a football match from a foreign channel?
[H]ow often have you seen the message “sorry, this content is not available in your country” when trying to watch a video on a social media platform?
Most of this has to do with copyright law and with what copyright allows rights holders to do. This is where the Commission’s proposal comes into play.
Is geo-blocking here to stay?
Those who own the rights of films, TV series and sport events grant a licence to distribute their content on a territorial basis. This model worked over the last decades for traditional television. However, it doesn’t make sense any longer in an increasingly digitalised environment in which content can be accessed online anywhere at any time.
When you go online to watch your favourite TV series, you expect to be able to watch it from any platform or content provider available online, not just from those ‘available’ in your country. The reason is simple: on the internet you do not expect to find virtual barriers.
With its proposal for online transmissions, the European Commission intends to make cross-border access to audiovisual content easier by facilitating the clearance of rights by broadcasting organisations. Broadcasters who acquired the rights to show a TV show, a movie or a football match in their country would be allowed to display this content (or part of it) to other European viewers online. This is good because at least you will be able to watch some of the content that before was blackened out. But it’s only a first step.
When you go online to watch your favourite TV series, you expect to be able to watch it from any platform or content provider available online, not just from those ‘available’ in your country.
The Commission’s initiative will STILL NOT allow you to subscribe to audiovisual service offers from a foreign provider. Are you unhappy with the catalogue of Netflix in your country and would like to switch to the UK, French or German version? Or are you frustrated with the grid of your local pay-TV broadcaster and would like to try a foreign service which might offer more interesting content? Well, you will not find the solution in the copyright proposal.
The future of consumers’ creativity
Let’s now look at how the Commission proposal for a directive on copyright in the Single Market will deal with the problem of those mash-up videos and remixes that you post online and which are often taken down because they contain some copyrighted content. Unfortunately, the situation does not look promising: there is little in the Commission plans which will clarify whether you can use that part of a song as background music of a video or make a remix of it to share online. This is a missed opportunity because as shown by a 2015 BEUC-survey not even copyright experts could agree whether such an act was legal or not.
It could be that simple: the creation of derivative works should be legal in Europe. But, unfortunately, the European Commission decided otherwise. What it will do is oblige platforms like YouTube or Facebook to filter every video or audio track uploaded by a consumer to identify if it contains part of a copyrighted work. And if it does, to take it down when the use of the original work was not licensed.
[T]he creation of derivative works should be legal in Europe. But unfortunately the European Commission decided otherwise…. Consumers should not be caught up in a brawl for money between the music industry and internet platforms.
Why is that? Because rights holders like record labels want platforms like YouTube to pay more for the music they host. We do not contest the fact that artists should be fairly remunerated. But this should not be at the expense of consumers who, for no commercial purpose whatsoever, use a song in their holiday video or make a remix of a cover of a song. Consumers should not be caught up in a brawl for money between the music industry and internet platforms.
What is next?
With these proposals the European Commission has kicked-off the legislative process. The European Parliament and the Council will now negotiate and decide how to amend these proposals before their adoption.
Our two messages are clear: legislators should finally deliver their promise to end geo-blocking in the Single Market. Consumers should decide for themselves if they choose a local or foreign channel to watch the content they want. And, consumers who want to share their creativity should not be punished by old-fashioned copyright laws.
The European Parliament shares our concerns:
“(…) consumers often face various limitations and the notion of consumers’ rights in the copyright framework is very often absent; calls on the Commission to assess the effectiveness of the current copyright law from a consumers’ perspective and to develop a set of clear and comprehensive consumers’ rights;” (EP resolution of 09 July 2015)
So it is about time to start looking at copyright from the user’s perspective because, after all, artists create for and depend on their audiences.
 Derivative works mean creations made by consumers for non-commercial purposes using parts of copyrighted materials such as a remix of a song, a mash-up video, a collage of pictures, etc.