Proposed EU copyright reforms keeping pace with digital age

Dublin-based Karen Gallagher of Pinsent Masons, the law firm behind Out-Law.com, said that changes in copyright laws are needed to reflect the "challenges of the digital age", and that this has been recognised by both EU policy makers and those in individual EU member states, including Ireland.

Gallagher was commenting after EU law makers at the Council of Ministers agreed its negotiating position on planned copyright reforms (66-page / 620KB PDF). The Council's proposals build on initial plans outlined by the European Commission in 2016.

"The proposals are intended to adapt existing copyright laws to respond to the digital environment, including through amendments to copyright exceptions and measures to facilitate access to content online," Gallagher said. "Whilst the protection of right holders remains central to the plans, it is clear from the proposals that this cannot hamper the continued development of the EU digital single market which is seen as paramount to the growth of highly skilled jobs across Europe."

According to the proposals endorsed by the Council, press publications will gain new rights to control reproductions of their works or the making available of their content online by 'information society service providers', such as online news aggregators.

Those new rights, however, would only apply for a year following publication, beginning on 1 January of the year following the date of publication. In addition, existing copyright exceptions would apply to the content and the new rights would not apply to "insubstantial parts of a press publication", according to the proposals. Each EU country would be free to determine what would constitute 'insubstantial'.

Plans to introduce a new mandatory text and data mining exception into EU copyright law have also been backed by the Council.

'Text and data mining' is defined under the proposals as "any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations".

Under the proposals, research bodies and cultural heritage institutions across the EU would be given the right to extract and reproduce copyright material from publications, datasets and other content they already have lawful access to.

Currently, although EU copyright laws provide exceptions that apply to uses of copyright material for scientific research purposes, rights holders sometimes prohibit text and data mining in licensing terms they agree with researchers when facilitating their access to their materials. Such contractual barriers would be prohibited under the proposed new laws.

Rights holders would not be able to obtain compensation for the new right provided for, according to the Council's proposals, but researchers and cultural bodies making copies under the exception would be obliged to store the copies securely and prohibited from retaining them "for longer than necessary for achieving the purposes of scientific research".

In addition, the Council has also put forward a further exception or limitation for text and data mining that would be optional for EU countries to implement into national law. The optional exception or limitation would apply to temporary reproductions or extractions of lawfully accessible content made during the process of text and data mining, unless such use has been "expressly reserved" by rights holders, such as through "technical means".

The Council's proposals also make provision for collaboration between 'online content sharing service providers' and rights holders.

Online content sharing service provider will require to be authorised by rights holders to make the rights holders' works available to the public and to prevent those works being accessed by the public from their services where no authorisation is given. Online content sharing service providers could be held liable for copyright infringement if they fail to observe the new rules.

The agreement by the Council of its negotiating position paves the way for talks on the wording of the final text with MEPs. Both the Council and the European Parliament must approve the reforms for the changes to come into law. The Parliament has yet to agree its own negotiating position, however.

Gallagher said that copyright reforms are also planned in Ireland to update the copyright framework for the digital age.

"The Copyright and Other Intellectual Property Law Provisions Bill 2018 was published in March, and implements some of the recommendations of the ‘Modernising Copyright’ report published by the Irish Copyright Review Committee," Gallagher said.

"This includes the introduction of more wide ranging copyright exceptions in the areas of caricature, parody or pastiche, educational uses, uses by persons with disabilities and text and data mining. The bill forms part of the Department of Business, Enterprise and Innovation’s strategy to continue the growth of Ireland’s prized ‘smart economy’," she said.