Today was the last day that interested parties could submit their reactions to the public consultation on the review of the EU copyright rules. The consultation was launched by the European Commission on 5th December 2013; the original deadline for input was then set at 5th February, but this deadline was later extended by one month.

The title of the consultation document gives the impression that the Commission is considering a review of the whole set of European copyright rules. However, this turns out not to be the case. The starting point is that the current regulatory framework should not be touched; the objective is merely to ensure that it “stays fit for purpose in the digital environment”.

With this in mind, it is no surprise that the consultation is limited to new forms of distribution and use which result from digital technology and the Internet. In the introduction paragraph of the consultation document it is stated that the consultation focuses on what the legislator should do “to ensure that the system of rights, limitations to rights and enforcement remains appropriate and is adapted to the new environment”. In the consultation document, the Commission refers to a whole bunch of policy documents, statements and actions (for example, its “Communication on Content in the Digital Single Market”, its “GreenPaper on copyright in the knowledge economy” (which was followed up by a Communication on the same topic, its “Green Paper on the online distribution of audiovisual works”, its “Content Online” initiative, its stakeholder dialogue on “Licenses for Europe” (which failed to “reach consensus on either the problems to be addressed or on the results”), the Directive on Collective Rights Management, the Directive on Copyright in the Information Society, the Directive on the legal protection of computer programs, the Directive on the legal protection of databases, the Satellite and Cable Directive, the Rental and Lending Rights Directive, the Enforcement Directive, the Directive on the term of copyright protection, the Orphan Works Directive, the 2011 Memorandum of Understanding on key principles on the digitisation and making available of out of commerce works and market-led initiatives supported by the Commission, such as the Linked Content Coalition and the Global Repertoire Database, and so on and so forth.

On top of the above European legislation and policy initiatives, all 28 EU Member States have their own interpretations of the European rules plus they can uphold their own national copyright regimes as the European legislator did not aim at full harmonisation.

All of this hampers the development and the roll out of new services and new forms of distribution and use which result from digital technology and the Internet. Many issues end up in court and are pursued all the way through up to the highest instance. Investments made before a final decision in any of those cases are risky. The complexity of the system makes it virtually impossible to act without  proper legal advice of highly specialised lawyers and without involving intermediaries such as collective rights management organisations.

It is clear from the above that Europe needs a more efficient coyright and rights clearance system; a system which is less legalistic and less bureaucratic. An economic model needs to be developed; a model which remedies the current inefficiencies and restricts the number of rights clearance transactions to the bare minimum.

X-Media Strategies has been involved in such an exercise before in the vertical value chain of production and distribution of audiovisual content. In The Netherlands the film and television producers, the public and private broadcasters and the operators of distribution platforms decided to work together on the development of an economic model for rights clearance which would replace the legal model. The reason was that the legal model had led to so many discussions, court cases and unclarities that it had started to hamper the development and roll out of new, inoovative services and this had to be stopped.

A similar initiative should be taken at the European level and X-Media strategies intends to take the lead in this. As a first step towards more efficient rights clearance mechaninsms in Europe, X-Media Strategies will support the parties in the vertical value chain of content production and distribution in developing options for economic rights clearance models which will facilitate the rollout of new and innovative audiovisual media services across the internal market.

Internet Service Providers Ziggo and XS4ALL do no longer have to prevent that their subscribers access The Pirate Bay.

On 28th January 2014, the Court of Appeal in The Hague (Den Haag) in The Netherlands overruled the earlier decision by the District Court of The Hague. Following a petition by an anti-piracy organisation by the name of Brein, the District Court had decided that internet service providers Ziggo and XS4ALL infringed copyright rules by facilitating that their subscribers could access content which was made available by The Pirate Bay without the express permission of the rights holders. Therefore it had ordered both companies to block access to The Pirate Bay.

The Court of Appeal, however, considered that the imposed blockade was ineffective and therefore did not contribute to the objective aimed at, namely to protect intellectual property rights. The Court of Appeal took account of the fact that Ziggo et al. did not engage in any infringements and decided that the principle of proportionality brings with it that therefore the degradation of the freedom of entrepreneurship of Ziggo et al. is not justified.

The decision entails an interpretation of EU copyright rules. According to the Court of Appeal, neither Article 8 paragraph 3 of the EU Directive on Copyright in the Information Society, nor Article 11 3rd sentence of the EU Enforcement Directive envisage the situation in which a third party using the services of intermediaries (such as Ziggo et al.) (illegally) facilitates/encourages copyright infringement by others, but does not commit infringements itself.

It so happens that the interpretation of Article 8 paragraph 3 of the EU Directive on Copyright in the Information Society is currently under consideration by the European Court of Justice (Case C-314/12, UPC Telekabel Wien GmbH vs Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft GmbH). In this case, the Court addresses the question of whether it is at all possible to issue (on the basis of this provision) a prohibition order targeting an internet service provider which does not provide internet access to the operator of a web site who commits large scale infringement on copyright, but only to the usersits subscribers who can decide individually to access the web site in question. According to the Advocate General, in his Opinion of 26 November 2013, imposing such an Order is not per se disproportionate.

Brein decided to take the case to the High Court (Hoge Raad). The High Court will not look at the merits of the case, but will decide whether the lower courts applied the law in a correct way. In doing so, it will need to take account of the Decision by the European Court of Justice which will have been published by the time the High Court of The Netherlands will decide.

An (unofficial) English translation of the decision by the Court of Appeal of The Hague is available here (pdf).