Creativity Works! urges policymakers to support future proof solutions in negotiations on DCD

Brussels, 3 January 2019

Ahead of the upcoming technical meeting on the Directive for Digital Content (DCD), Creativity Works!, a leading European coalition of the cultural and creative sectors, would like to express our support to the European Parliament, Council and Commission for the progress made on this draft Directive. It strikes a fair balance between the interests of consumers who receive digital content and the interests of businesses who provide that content.

We understand that only a few issues remain to be settled. CW! members would like to reiterate to the negotiators to take into consideration the implications of the Directive for Europe’s cultural and creative sectors:

In line with the provisional agreement reached by negotiators on Recital 21 and Article 3(8)(a), it is essential that the DCD does not interfere with EU and international copyright laws.

• Embedded digital content - The Council approach should be maintained on embedded digital content. While rules regulating embedded digital content may be warranted in the future, the impact of extending the Directive to this area is premature and will result in confusion for both suppliers and consumers over the return of defective goods. Consumers should however retain rights in the directive for Digital Content supplied on a tangible medium.

• The new Presidency wording in Recital 12aa falls short of adding the necessary legal clarity. If a video game or games are embedded in a console, "the absence of that digital content or digital service would” not "prevent the goods (console) from performing their functions”. We maintain that this is an area that should remain outside of the Directive. We also maintain our support for the reference to downloaded digital games in Recital 12ab.

• On long-term contracts, we urge policymakers to commit to the preliminary agreed wording on Article 16(1a) (4 column table of 12 November – version 7.3). This wording provides for a general compensation rule, allowing us to plan large investments in content with more certainty. This results in greater consumer choice, the offering of free services and significant reductions in monthly fees. The model is a win-win for consumers, business and cultural diversity.

Restricting paragraph 16.1a to goods, as provided by the European Communication Code (EECC), does not take into account the needs of our sectors and would create the unintended consequence of reducing consumer welfare, therefore having a negative effect on European companies. Companies from our sector almost exclusively rent equipment. Aligning DCD with provisions from the EECC would remove the ability to offer advantages and tailor our offers to consumers, increasing costs for consumers.

• After a lengthy debate in both the European Parliament and the Council, a carefully balanced approach has been reached on the role of data, which takes into account the interests of both business and consumers. CW! urges policymakers not to introduce any new concepts at this late stage of the process.

• We support the Council’s approach on the Burden of Proof provisions, which requires businesses to bear the burden of proof to demonstrate conformity for one year only.

About Creativity Works! 

Like-minded organisations, federations and associations from the European cultural and creative sectors have formed a coalition: Creativity Works!. Its objective is to foster an open and informed dialogue with EU policy-makers about the economic and cultural contribution made by creators and the cultural and creative sectors in the digital age. Members are brought together by a sincere belief in creativity, creative content, cultural diversity and freedom of expression.