Europe and the train of the Digital Single Market


by Isabel Espín, Professor at the Law School of Universidade de Santiago de Compostela

The European Union must not miss the train of a true digital single market that will keep the momentum of its important digital content industry and make it more competitive without losing the essence of European cultural identity.

The Communication from the Commission on a strategy for the Single Digital Market in Europe of 6 May 2015 takes account of this and calls for a comprehensive legislative reform in order to combat fragmentation and barriers in the European digital market, a situation that has been affecting Europe’s leadership capacity in the global digital economy.

The basis for such regulatory initiatives are Article 4 (2) (a) and Articles 26, 27, 114 and 115 of the Treaty on the Functioning of the European Union. There are many topics involved in a comprehensive and integrated single market initiative: data protection, e-commerce, consumer protection, access (broadband and interoperability), competition law, taxation, etc.

From the point of view of copyright, the Commission’s communication on promoting a European economy founded on fair, efficient and competitive copyright in the digital single market, of 14 September 2016, is the instrument that point out the initiatives concerning the protection of copyright in the digital single market. Such initiatives are: the Proposal for a Regulation regulating copyright and related rights for online television broadcasts and rebroadcasts on online TV and radio programs; Proposal for a Regulation governing the exchange of accessible copies between the EU and third countries part of the Marrakesh Treaty; Proposal for a Directive to facilitate access to public works for blind and or visually impaired persons (Marrakech Treaty).

The main objectives outlined in these initiatives are summarised in: providing greater choice and access to online content and across borders, promoting a fairer and more sustainable market for creators, creative industries and the press, and facilitating access and use of materials, works or other content protected in certain areas.

We are in the presence of necessary and demanded measures, but will they be enough to adapt the copyright to the new demands of the digital market? I anticipate a negative answer, since important aspects related to the concept of protected work itself and its eventual consideration as digital content, the new subjects involved in the creation, the configuration of the right of transformation in the digital environment, as well as the disparity of criteria on important limits to copyright, are not addressed.

Copyright and related rights have an erratic trajectory, with Directives that had very different transpositions in the different Member States, providing a prominent role of the Court of Justice of the European Union, which on more than one occasion makes a genuine jurisprudence of interest in its role as interpreter of the EU law.

As far as the protection object is concerned, the latest technological advances generate innovative forms of creation and also the availability of content. The mere reference, for example, to 3D printing technology opens up a universe of creative possibilities; and if we focus on the platforms of diffusion, social networks, among others, they are no longer a mere place of meeting and dissemination of contents, but allow new models of collective creation that provide citizens, not necessarily professionals of creation , simpler and cheaper channels of artistic and/or literary expression.

Of course, the use of these truly unprecedented tools generates an exponential volume of literary, artistic or scientific works, many of which are multi-authored, instantly disseminated and with a high capacity of making available to the public. At the same time, it is a claim of broad sectors of society that access to such content is free in many cases, and in others with significantly reduced costs.

The multiplication of economic agents involved – authors, rights holders, users, service providers, access providers, among others – makes the search for a balance between intellectual property and the various actors involved even more complex.

How should copyright respond to these challenges of an interactive consumer?

For the time being, more coordination is needed with the proposed reforms in the field of consumer protection. It is impossible to comply with the ambitious approach of the Digital Single Market Communication of 2015 without an overall view of the subject, as it is essential to link intellectual property reform to the implementation of, on the one hand, the Proposal for a Directive on certain aspects concerning contracts for the supply of digital content and, on the other hand, the Proposal for a Directive on certain aspects concerning contracts for the online and other distance selling of goods. Think of the impact of regulating the sale and access to digital content without having as a premise a clear and precise concept of what protected work may be digital content.

For this and many other technical difficulties, let me be a bit pessimistic, but if the reforms are not carried out firmly and quickly, and in a coordinated way, we can see the train passing…

Picture credits: Moving by ackamann.

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