31 July, 2014

ETNO views on the EU Commission’s Forthcoming White Paper on the Review of EU Copyright Rules

ETNO, the leading trade association in Brussels for telecom operators, takes particular interest in the follow-up of the European Commission’s public consultation on the review of the EU copyright rules and welcomes the Commission’s initiative to put forward proposals for revision through a White Paper.

In undertaking this exercise, ETNO believes that it is of the utmost importance that the European Commission adopts a forward looking and ambitious approach to copyright reform considering that:

  • The Internet and digital platforms and technologies represent unprecedented opportunities for EU growth and wellbeing and are the key enablers of new distribution models;
  • Consumer demand for digital products and services is at an all-time high. The entire digital sector is poised to benefit from growing consumer demand for new and innovative digital services;
  • The structure of the digital market is changing and new players are emerging: this implies a need to reconsider the interplay between different market forces with a view to guaranteeing that all players who benefit from the digital environment contribute to its growth and investment;
  • A revised copyright framework should facilitate the emergence of new business models and must not stifle innovation.

More in particular, ETNO wishes to re-state the following considerations and positions:

  • Creativity is protected through the application of an effective and balanced copyright system. This careful balance should not be upset, such that those in the digital value chain, such as broadband operators who invest heavily in the development of the digital market, are asked to carry a disproportionately heavier burden. In the same vein, there should be no disproportional extension of the role of intermediaries as regards addressing copyright infringement. Given the recent publication of the European Commission’s Action Plan on Enforcement, it is of the utmost importance to maintain a balanced approach, based on non-legislative measures. Further, copyright rules should be clear and balanced with other fundamental rights.
  • There is an ongoing need to facilitate a wider availability of legal content at affordable conditions, as the key means to boost the legal digital market and to address any underlying infringement concerns.
  • There is a general need for a strengthened harmonisation of rules and practices throughout Europe. This applies in particular to the private copy levy field, where variances in national regimes may lead to a widening of EU market fragmentation to the detriment of EU consumers and players. It would therefore be important, in those countries where the private copy regime is applied, to grant a full harmonisation of the applicable regime, specifically in relation to the criteria for the determination of the tariffs, the fair compensation principle, the double compensation, etc. In addition, an EU approach should guarantee that some fundamental principles are followed in the definition of the levy (ex. proportionality, substantial harm, no double payments, fair compensation etc.). To avoid a double payment and a negative impact on consumers, a private copy levy should not be applied to cloud services.
  • The Commission’s review should aim to investigate the market structure and practices in many relevant areas, using objective and comprehensive data (in particular regarding the impact of unauthorised distribution, taking into account that it also has a heavy impact on legal distributors such as telcos).
  • Overall, we should aim for an approach which favours voluntary and commercially driven measures, rather than intervening via legislative instruments. ETNO believes that the Commission’s “follow the money approach” is a sound approach.
  • There is a need to simplify and streamline the current regulatory framework, in order to adapt it to evolving technologies. Accordingly, browsing and hyperlinking should not be subject to an ad-hoc licence, to the extent that the hyperlink provision facilitates access to a work that has already been published (therefore it is not a new publication) and web-browsing implies the realisation of temporary copies that are covered by the exception provided by the Copyright Directive. Imposing some sort of licensing on hyperlinking would also be at odds with the principles of Internet openness and freedom, often recalled by the European Commission, since the mere activity of adding a link pointing to something already available on the web would then require the authorisation of the relevant right-holder. This would clearly limit the Internet user’s right to freely share information on the web.
  • We should avoid a duplication of processes to request and enjoy rights: any making available right should also cover the right of reproduction.
  • There is a need to distinguish, in the case of user-generated content, between private and non-commercial use.
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