Annexes to COM(2007)836 - Creative content online in the Single Market - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2007)836 - Creative content online in the Single Market. |
|---|---|
| document | COM(2007)836  |
| date | January 3, 2008 |
The application of competition law can in some cases remedy abuse relating to the exploitation or bundling of rights.
Another issue relates to the often high transaction costs for rights-clearance. One particularly acute problem is that of orphan works – i.e. books, photographs, film material and other works under copyright for which the right holders are difficult or even impossible to identify or to locate[10]. Efforts for identification and location are costly and time consuming. Hence, in many cases, orphan works cannot be exploited and yield no financial benefit to the (unknown or not locatable) author so they are unproductive both in economic and social terms.
The problems arising from orphan works are notably tackled within the context of the i2010 Digital Libraries initiative, which aims at bringing Europe's cultural and scientific heritage online. In its Recommendation of 24 August 2006 on the digitisation and online accessibility of cultural material and digital preservation[11], the Commission urged the Member States to create mechanisms facilitating notably the use of orphan works. Council conclusions of 13 November 2006[12] endorsed the Commission's approach and stressed the need to ensure the effectiveness of national solutions for orphan works in a cross-border context. This is also a key recommendation in the report on copyright issues of the High level expert group on digital libraries[13]. The Commission will closely monitor the implementation of the Recommendation and the need for further action at European level.
Multi-territory licensing for creative content
Another major market change resulting from convergence is the ability of content service providers to reach new audiences by making content available on new platforms at European or even global level. As a result of copyright territoriality, a content service provider has to obtain the right to make content available in each Member State. The costs incurred, may be detrimental to the exploitation of a vast majority of European cultural works outside their national markets.
The online environment allows content services to be made available across the Internal Market. However, the lack of multi-territory copyright licences makes it difficult for online services to fully benefit from the Internal Market potential.
While it is first for right holders to appreciate the potential benefits of multi-territory licensing, there is a need to improve the existing licensing mechanisms to allow for the development of multi-territory licensing mechanisms, for instance by promoting fair competition on the market for rights management. It should be noted that different practices apply to different types of content.
In the music sector, in order to facilitate the introduction of a multi-territorial system of copyright licensing for online music services, the Commission issued a Recommendation on online management of music rights in October 2005. This Recommendation aims to facilitate the grant of multi-territory licences for online use of musical works by affirming the right of right holders to entrust the management of any of the online rights necessary to operate legitimate online music services, on a territorial scope of their choice, to a collective rights manager of their choice, irrespective of the Member State of residence or the nationality of either the collective rights manager or the right holder. The Commission has recently invited all interested stakeholders to submit views and comments on their initial experience with this Recommendation and, in general, on how the online music sector has developed since its adoption.
The issue of multi-territory licensing has become relevant in other creative content sectors such as the audiovisual sector. In the audiovisual sector, while the new Directive on audiovisual media services will facilitate cross border development of on-demand services, many right holders still choose to grant licences for only a few national territories, thus slowing the availability of audiovisual works in video-on-demand catalogues abroad. Developing a system where right holders would be encouraged to grant, next to the main licence, a second multi-territory licence would be one of the issues to be covered in the public consultation in respect of the preparation of a proposal for a Recommendation, as well as an issue for discussion within the Content Online Platform. Furthermore, the Commission envisages financing an independent study investigating the economic consequences for European audiovisual works that could result from such a practice.
Interoperability and transparency of Digital Rights Management systems (DRMs)
The uptake of legitimate services passes by tackling the problem of digital piracy by enhancing the cooperation between the various players in the value chain and by developing attractive offers and business models for the distribution of digital content. DRM constitute a key enabling technology in this respect, allowing right holders to enforce their rights in the digital environment and to develop business models adapted to consumer demand and needs. However, for some time now, DRMs and associated Technological Protection Measures (TPMs) have sometimes been perceived in a negative way, as technology merely used to restrict copying and competition, failing to meet initial users' and businesses' expectations. This has led to a situation where certain market players opt for online distribution of content without any copy-restriction mechanisms. Notwithstanding, these developments mainly concern one type of content and business model; i.e. pay per download of music. Technologies allowing management of rights in the online environment might be a key enabler for the content sector's digital shift and for the development of innovative business models - especially with regard to high value content.
The move to a DRM protected environment results in a major paradigm shift for European citizens and consumers. Usage governed by licensing agreements enforced by technical measures now complements usage of copyright protected work governed by law. As a result consumers must increasingly confront complex contractual terms when purchasing music, film or other creative content online, and are not necessarily fully aware of the usage restrictions applied or the use of their personal data. This is perceived as severely affecting user interests, and putting the existing balance between copyright holders and user interests at risk. At the same time, while a great number of DRM protected content services have been launched in the past years, stakeholders are increasingly concerned that the lack of interoperability, standardisation and cross platform friendliness in DRMs leads to gatekeeper situations. In order not to jeopardize the future of this technology as an enabling factor, it is crucial to address the question of interoperability.
Better interoperability of DRM systems would improve the level of competition and consumer acceptance necessary for the take-up of online distribution of creative content. For consumers, DRM interoperability means that they can choose different devices and still use them with different 'download-to-own' services. For content producers or content aggregators interoperability means they are not locked into one distribution channel that forms a gatekeeper to the marketplace. For device and ICT developers, interoperability means that their products can be used with different content services[14].
As lengthy discussions among stakeholders did not yet lead to the deployment of interoperable DRM solutions, there is in any case a need to set a framework for transparency of DRMs regarding interoperability, by ensuring proper consumer information with regards to usage restrictions and interoperability. Providing consumers with an accurate and easily understood labelling system on interoperability and usage restrictions, allowing them to make an informed choice will improve citizens' rights and provide for a sound basis for a wider availability of content online.
Legal offers and piracy
Recording music and film industries have expressed the view that the Commission should be prepared to take legislative steps to make sure that the public interest in ensuring an adequate level of data protection is properly reconciled with other important public policy objectives such as the need to combat illegal activities and to protect the rights and freedoms of third parties.
Piracy and unauthorised up- and downloading of copyrighted content remains a central concern. The fight against online piracy involves a number of complementary elements: (1) developing legal offers; (2) educational initiatives; (3) enforcement of legal rights; (4) seeking improved cooperation from Internet Service Providers (ISPs) in stopping dissemination of infringing content. The idea of education and awareness-raising on the importance of copyright for the availability of content is widely supported as a tool in the fight against piracy.
Content owners call for increased co-operation in the fight against piracy. Annex I to the recently adopted legislative proposal for the reform of the Authorisation Directive includes references concerning compliance with national measures implementing the Copyright Directive (2001/29/EC) and the Enforcement Directive (2004/48/EC)[15]. Moreover, Article 20(6) of the legislative proposal to amend the Universal Service Directive provides for an obligation for ISPs to clearly inform subscribers in advance of the conclusion of the contract and regularly thereafter of their obligations to respect copyright and related rights[16].
In France, a Memorandum of Understanding[17] between music and film producers, Internet service providers and the Government was signed on 23 November 2007. Under the agreement, France is to set up a new Internet authority with powers to suspend or cut access to the web for those who illegally file-share.
It would indeed seem appropriate to instigate co-operation procedures ("code of conduct") between access/service providers and right holders and consumers in order to ensure a wide online offer of attractive content, consumer-friendly online services, adequate protection of copyrighted works, awareness raising/education on the importance of copyright for the availability of content and close cooperation fight piracy/unauthorised file-sharing.
CONCLUSION
While the review process of Directives affecting distribution of content, such as the Satellite and Cable Directive, the 2001 Copyright Directive and the Conditional Access Directive are ongoing, this Communication launches a process to address the identified and most pressing challenges related to online distribution of creative content. The Commission wishes to address the challenges raised in this document by two means:
- The setting-up of the "Content Online Platform", a framework for discussion, at European level. This Platform devoted to content specific or cross-industry negotiations around the issues related to the online distribution of creative content, should include, according to the agenda of each meeting, content providers, right holders, companies and organisations from the telecoms and technology sectors as well as consumers. The remit of the Content Online Platform will include the issues mentioned in this Communication such as: availability of content, improvement of rights clearance mechanisms, development of multi-territory licensing, management of copyright online, cooperation mechanisms to improve respect of copyright in the online environment. The work of the Platform should also contribute to the elaboration of a Guide for consumers and users of Information Society services[18].
- Reflecting on the preparation, towards mid 2008, of a proposal for a Recommendation of the Parliament and the Council on Creative Content Online, which would cover the following issues: transparency (labelling) and interoperability of DRMs; encouragement of innovative licensing regimes in the area of audiovisual works; and legal offers and piracy. On the main elements of the future proposal, the Commission wishes to further consult interested stakeholders. Therefore, all stakeholders are invited to take position on the elements listed in the Annex to this Communication by 29/02/2008.
ANNEX
Creative Content Online – Policy/Regulatory issues for consultation
Digital Rights Management
1) Do you agree that fostering the adoption of interoperable DRM systems should support the development of online creative content services in the Internal Market? What are the main obstacles to fully interoperable DRM systems? Which commendable practices do you identify as regards DRM interoperability?
2) Do you agree that consumer information with regard to interoperability and personal data protection features of DRM systems should be improved? What could be, in your opinion, the most appropriate means and procedures to improve consumers' information in respect of DRM systems? Which commendable practices would you identify as regards labelling of digital products and services?
3) Do you agree that reducing the complexity and enhancing the legibility of end-user licence agreements (EULAs) would support the development of online creative content services in the Internal Market? Which recommendable practices do you identify as regards EULAs? Do you identify any particular issue related to EULAs that needs to be addressed?
4) Do you agree that alternative dispute resolution mechanisms in relation to the application and administration of DRM systems would enhance consumers' confidence in new products and services? Which commendable practices do you identify in that respect?
5) Do you agree that ensuring a non-discriminatory access (for instance for SMEs) to DRM solutions is needed to preserve and foster competition on the market for digital content distribution?
Multi-territory rights licensing
6) Do you agree that the issue of multi-territory rights licensing must be addressed by means of a Recommendation of the European Parliament and the Council?
7) What is in your view the most efficient way of fostering multi-territory rights licensing in the area of audiovisual works? Do you agree that a model of online licences based on the distinction between a primary and a secondary multi-territory market can facilitate EU-wide or multi-territory licensing for the creative content you deal with?
8) Do you agree that business models based on the idea of selling less of more, as illustrated by the so-called "Long tail" theory, benefit from multi-territory rights licences for back-catalogue works (for instance works more than two years old)?
Legal offers and piracy
9) How can increased, effective stakeholder cooperation improve respect of copyright in the online environment?
10) Do you consider the Memorandum of Understanding, recently adopted in France, as an example to followed?
11) Do you consider that applying filtering measures would be an effective way to prevent online copyright infringements?
Please submit your comments by 29/02/2008 in electronic format. All submissions will be published on the Commission’s website if not requested otherwise. Contribution to be treated confidentially should indicate this at the top of the first page. Should you want to add a cover letter please do so in a separate document. In case your comments exceed four pages, please provide an executive summary. All submissions should be mailed to the functional mailbox of the Audiovisual and Media Policies Unit of the Directorate-General for Information Society and Media: avpolicy@ec.europa.eu. |
[1] Study on "Interactive Content and Convergence; Implications for the Information Society" commissioned by Information Society and Media Directorate-General of the European Commission, published on 25 January 2007
[2] http://ec.europa.eu/avpolicy/other_actions/content_online/contributions/index_en.htm
[3] For a summary of the public consultation, see the Commission staff working paper on Creative Content Online.
[4] OJ L 248, 6.10.1993, p. 15.
[5] OJ L 167, 22.6.2001, p. 10.
[6] OJ L 276, 21.10.2005, p. 54 – OJ L 284, 27.10.2005, p. 10.
[7] OJ L 320, 28.11.1998 p. 54.
[8] For the other issues raised in the public consultation, see the Commission Staff Working Paper on Creative Content Online.
[9] Interactive Content and Convergence; Implications for the Information Society, 2007, p. 13
[10] Gowers Review of Intellectual Property, December 2006, p. 69: "The British Library estimates 40 percent of all print works are orphan works".
[11] OJ L 236, 31.8.2006, p. 28.
[12] OJ C297, 7.12.2006, p. 1.
[13] See: http://ec.europa.eu/information_society/activities/digital_libraries/hleg/index_en.htm
[14] To the extent that DRMs are a form of conditional access system, in the second evaluation report of the Conditional Access Directive that is to be undertaken in 2008, the Commission will assess to what degree that Directive has or could facilitate the roll out of DRMs.
[15] COM(2007) 697 final.
[16] COM(2007) 698 final
[17] "Accord pour le développement et la protection des œuvres et programmes culturels sur les nouveaux réseaux" – http://www.culture.gouv.fr/culture/actualites/index-olivennes231107.htm
[18] See MEP Z. Roithova's (EPP) "own initiative" report on Consumer confidence in the digital environment and European Parliament resolution of 21 June 2007 on consumer confidence in the digital environment (2006/2048(INI)) - http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2007-0287+0+DOC+XML+V0//EN&language=EN