Opinion on the DSM Copyright Directive Adds, Rather than Solves, Problems

Written by Laura Blanco

A recent opinion on copyright from the the European Parliament’s Culture and Education Committee (CULT) fails to address CDT’s core concerns with current attempts to update copyright law for the digital age. MEP Marc Joulaud (France, EPP), issued his draft opinion on the proposed Directive on copyright in the digital single market, and while he did at least acknowledge that internet users are important contributors to the digital ecosystem, he mostly left in place counterproductive amendments and vague language that will make enforcement of any provisions difficult.

Specifically, the CULT opinion maintains, and even further muddles, issues related to filtering (Article 13), ancillary rights for press publishers (Article 11), and a limited text and data mining exception (Article 3). Our concerns with each are detailed below. Ultimately, we’d like to see Articles 11 and 13 deleted from the Directive and the scope of the exception in Article 3 significantly widened.

Filtering obligation of user uploaded content (Article 13)

This provision, which obliges internet intermediaries to use content identification technology to prevent users from uploading unlicensed copyrighted content is incompatible with the liability protections in the eCommerce Directive. The CULT Opinion does not solve this conflict, but widens the scope of the monitoring obligation as proposed by the Commission. In Joulaud’s draft Opinion, the text is amended to apply to ‘digital content platforms’ instead of ‘information society service providers’. It also amends the term referencing services that ‘store and provide’ to ‘content uploaded or displayed’ by users. Thus, by removing ‘storage’ as a condition, the scope of Article 13 is considerably widened to include all content that is embedded, (live) streamed, etc. Moreover, the draft Opinion in amendment 28 replaces ‘large amounts of copyright protected works or subject matter uploaded by their users’ with ‘significant amounts of user-generated content, copyright protected works or other subject-matter uploaded or displayed by their users’, which also results in a widened scope in terms of covered content.

Ancillary copyright for press publishers (Article 11)

The proposed ancillary right for publishers in Article 11 is a misguided attempt to help newspaper publishers access new funding streams. It has been tried and failed both in Germany and Spain, and we believe that this provision should be removed from the proposal altogether. Taking this into consideration, the proposed decrease in duration of the protection from 20 years to 3 years is of limited use. It remains far too long. Publishers would continue to be granted the right retroactively, with an adverse impact on news aggregators and websites. More troubling is Joulaud’s limitation of the ancillary copyright to commercial purposes. This is a vague term and creates further legal uncertainty for citizens when sharing links to press publications. What exactly qualifies as ‘non-commercial and private use’? CULT’s amendments to recitals 33 and 34 add further uncertainty, with the references to hyperlinking stating that ‘this protection does not extend to acts of hyperlinking, or to the text fixating the hyperlink, where such acts do not constitute communication to the public under Directive 2001/29/EC’ and ‘Where content is automatically generated by an act of hyperlinking related to a press publication, such content should be covered by the protection granted to press publications under this Directive’. This vagueness creates more questions than answers.

Text and Data Mining (TDM) Exception (Article 3)

As regards TDM, there should be a wider exception than the Commission proposes. If other entities and individuals that have legal access to content, other than ‘research organisations’, cannot benefit from the exception, it could restrict advances in competitiveness and research in the EU. Joulaud does clarify that ‘scientific research’ should be understood as encompassing both the ‘soft and hard’ sciences – a step in the right direction. Yet, his view on the exception is a rather restrictive one. Amendments 3 and 44 include an obligation for research organisations to destroy content used for TDM ‘once all the acts necessary for the research have been performed’ in order ‘to prevent unjustified dissemination’. This would be an obstacle to those engaging in scientific research that rely on the verifiability of research results. The CULT rapporteur goes on to propose an obligation for rightholders to be compensated for TDM uses in amendments 5 and 47, which simply goes against the concept of the exception which applies to content that one has legal access to, and disregards the open access cases.

All in all, on the most troubling aspects of the proposed Directive, the CULT opinion adds complexity and fails to address the problems that the Commission’s proposal already presents.

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