Review of the EU copyright framework: The implementation, application and effects of the `InfoSoc` Directive (2001/29/EC) and of its related instruments

Publié le 28 octobre 2015 par Thérèse Hameau

Ce rapport analyse l'impact de la Directive n° 2001/29/CE du Parlement européen et du Conseil du 22 mai 2001 sur l'harmonisation de certains aspects du droit d'auteur et des droits voisins dans la société de l'information dont les carences induites notamment dans l'exploitation des grands jeux de données et de la fouille de textes et de données.

Abstract (excerpts)

This European Implementation Assessment aims to provide briefing for the Committee on Legal Affairs (JURI) ahead of the publication of the Commission’s legislative proposals concerning the modernisation of the EU copyright framework, which are expected towards the end of 2015. The specific objective is to help JURI Members achieve a better understanding of the actual gaps and weaknesses in the existing EU copyright framework.

For this European Implementation Assessment, input was received from three independent external contractors: A consortium led by the Centre for European Policy Studies (CEPS) with Economisti Associati as consortium partner; Milieu Ltd; and, Valdani Vicari & Associati (VVA) with the involvement of KEA European Affairs as a
subcontractor.

This European Implementation Assessment is divided into an Ex-Post Impact Assessment study and three EU Added Value briefing papers, which are included as annexes.

Introduction (excerpts)

This European Implementation Assessment is presented three months after the European Parliament adopted a non-legislative resolution on the implementation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights (InfoSoc), Rapporteur Julia Reda (Greens, DE), and ahead of the European Commission’s related legislative modernisation proposals, expected during the 4th quarter of 2015.

The introduction presents a summary of findings and analysis based on:
– the input from the Ex-Post Impact Assessment study on the implementation, application and effects of the InfoSoc Directive and of its related instruments,
– on three briefing papers on discrete aspects of the added value of modernising the EU copyright framework,
– this introduction is also based on internal research.

The draft and final study and briefing papers were presented and discussed at two Copyright Working Group meetings and one JURI Committee meeting in 2015

…

5. Key findings of the Ex-Post Impact Assessment on the implementation, application and enforcement of the InfoSoc Directive and of its related instruments (excerpts)

5.3.2. Sources of fragmentation

Diverging definitions at the Member State level for `derivative works/transformative uses`, and `authorship` are at the root of fragmentation in the internal market. Furthermore, the differing interpretation of exceptions and limitations between Member States has also contributed to fragmentation, with in particular the introduction of new exceptions not originally envisaged by the InfoSoc Directive(namely the UK Text and Data Mining exception). Divergent enforcement practices in Member States are also singled out, with some Member States relying on administrative procedures and others on codes of conduct. Finally, the different approaches to the remuneration and compensation of authors through private copying levies have also created distortions in cross-border trade.

5.4.2. Side-lined enforcement mechanisms

The lack of relevance of the EU copyright framework.

The overall approach adopted by the InfoSoc Directive and its subsequent legislation deserves urgent and careful adaptation to address the problems and gaps identified in the scope of the rights and exceptions, the existing emphasis on ‘copy’ rights rather than authorship and also to address the insufficiencies concerning enforcement.

In particular, the absence of legal certainty to support the development of Text and Data Mining is a key gap in urgent need of addressing.

5.5. Summary

5.5.1. Gaps which could be addressed by non-legislative measures

Similarly, the lack of flexibility and adaptability of exceptions and limitations to new uses (mass digitisation, text and data mining, e-lending, e-learning, User Generated Content) could be partly remedied if, for example, Text and Data Mining were directly included in the scope of the mandatory exception for transient copies. Furthermore, the lack of clarity on the implementation of specific exceptions (e.g. the exception covering parody, caricature and pastiche) could be remedied, at least partly, through more coordinated and consistent implementation.

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