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EU copyright chief: We could SMASH these infinite copyright contracts... just wait

'No great upheavals' just yet, says Martin-Prat

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Europe's competition authority could open up an examination of unfair copyright contracts, according to the region's copyright chief.

Speaking at a Westminster Forum seminar, Maria Martin-Prat, EC Head of the Copyright Unit for the Internal Market Directorate General (DG MARKT), said the Commission should look at whether contracts were fair.

She told us that the infinite assignment of rights that authors must agree to in most EU countries to get their work published was what she had in mind.

In the digital era, freelance authors and photographers in many members states have been asked to assign their rights to an intermediary in “infinite” deals. By contrast, copyright can’t be assigned at all in Germany.

The distribution of “the share of the value in the internet” was worth examining said Martin-Prat - particularly “who gets the profits?”

Infinite contracts were disturbing and the Commission could explore fair contracts, she told El Reg.

In response to questions Martin-Prat said the Commission had to examine all areas of copyright or face unwelcome decisions by the European Court, which was keen on the single market principles being upheld. The examples she cited - the two biggest cases in recent years - were the Premier League and UsedSoft vs Oracle.

The UsedSoft verdict permitted a legally acquired piece of software to be resold in some circumstances; the Premier League outlawed nation states from banning TV decoder cards used to decrypt and view copyrighted TV transmissions.

“In both cases the Court was pushing the boundaries of the copyright rules to help the function of the internal market,” she said. “UsedSoft was desperately trying to turn software licensed by a user into a good - so they could enjoy free movement of goods,” she observed. “The Court cut a few corners” in its interpretation, she thought. However, “if we don’t do something at some point the CJEU will keep pushing.”

And we have some idea of what that 'something' might look like.

All change? Not really

The Europe’s internal market commission’s review into copyright is due to report soon, but an undated draft White Paper has been leaked.

The conclusions recommend no great upheaval, and no changes over “exhaustion” - touched upon in UsedSoft - or user-generated content are sought.

Exhaustion is the insider jargon for the second hand business, so named because of the exhaustion of the exclusive right to distribute a real-world artefact containing copyright material, such as a book or a CD. Once distributed, the physical product can be sold or passed on, although the author sees nothing from any further transactions. Changes to the law here would be “premature”, the Commission believes, although it will watch to see how low-cost licensing of electronic goods develops.

The Commission also thinks introducing a lending exception is “premature” given that the e-book market is developing apace, with low cost licensing, but may consider an exception for remote researchers and students over a secure network.*

The Commission isn’t impressed by talk of a “crisis” about user-generated content. (That passed us by too). It can’t see a market failure, and there’s no lack of user-generated content. However citizens should be aware that that they have strong rights over their own material, the report says, and it acknowledges that copyright can be difficult for individuals to enforce. The UK recently expanded the use of courts for small copyright and patent claims - such as infringing use of your photos - with damages capped at £10,000. But it isn’t easy to use and most people don’t know about it.

Again, the Commission said it’s looking at how the market could address the problem, particularly as low cost licensing systems are evolving. These need to be allowed to grow before it would consider wading in.

The Commission is also keen to see some harmony brought to levies - which vary wildly between member states. And it gave the copyright industries a kick up the bum to get their identifiers in order.

Bootnote

* Stop laughing. That's what it says.

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