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The future of copyright in Europe

THE EUROPEAN Union is debating a Directive to make changes to the law on copyright and authors' rights - see our round-up of the first draft in September 2016 and a fuller account of the better bits in February.

A leak of the "compromise position" to be debated at the Council of the European Union has emerged: see the link below. The Council is where EU member states - still including the UK - meet. In parallel, the European Parliament will start debating nearly 1000 amendments in October.

Our preliminary analysis of the leak follows:

Public Lending Right

Public Lending Right in the UK is a payment to compensate authors for the loss of sales due to their books being loaned by libraries. It is independent of copyright: payment is due to the authors (including illustrators and photographers) even if they assigned copyright to a publisher. Public Lending Remuneration in Ireland is similar.

The document proposes that publishers should be entitled to a share of PLR payments. That came out of left field. Unless governments' PLR budgets were increased to match, if passed it would result in a reduction in authors' income in many countries, for example Ireland.

This has been bolted onto earlier proposals in the Draft Directive that would amend EU law so that publishers should be entitled to a share of receipts on "levies" on equipment used for copying, such as photocopiers, computer printers and (in some member states) memory sticks. This resulted from a German Federal Supreme Court ruling that publishers were not entitled to this, despite having received it since levies were introduced - see the International Publishers Association response. Colleagues in Germany support the idea that publishers should continue to have a share and that the levy system should go on working as it has in practice.

That German court decision in turn sprang from the ruling of the Court of Justice of the European Union in Reprobel, a case brought by the computer printer manufacturer Hewlett-Packard against the eponymous Belgian collecting society. The Freelance believes that Hewlett-Packard was trying to destroy the levy system in joined-up Europe. There is no levy system in the UK or Ireland.

Grammatical evidence suggests... that parts of the leaked document by someone who in German thinks were drafted. The German and Austrian equivalents of PLR are part of copyright law: they are seen as licensing to libraries. German book publishers get 30 per cent of the funding allocation. Maybe someone hasn't thought through the implications for authors in Ireland (and, in some possible futures, the UK)?

Transparency

The leaked document makes various rather sensible suggestions for amendment that would, at first glance, make the proposals in the Draft Directive demanding that publishers, broadcasters and online services are transparent about the income due to authors' and performers' work more, er, workable.

New right for press publishers

The paper offers two alternative texts. The first tidies up the existing proposal that press publishers should have a "neighbouring right" - that is, a right that sits alongside authors' copyright, as does for example the right of for example a music studio or record company in master tapes. On first reading these proposed amendments would make the proposal more workable - though whether it's workable at all in the face of a monopoly that can simply say "if you say we have to pay to scrape up news headlines, we'll just not index newspapers' web sites" remains to be seen.

The alternative option instead proposes a legal presumption that the newspaper publisher is the person entitled to sue for unauthorised copying of the works contained in the newspaper. We have yet to work out how this would work, if at all.

Obligations of service providers

Comment to follow... to follow an Espresso in a darkened room.

Exceptions for use in illustration in education

There is, oddly, nothing in this document on that.