”Winter is coming”. While ‘Game of Thrones’ fans will associate this with the recent launch of the new season, those involved in EU copyright reform discussions are likely to be feeling rather ‘chilly’ in view of recent developments. The original Commission proposal for a Copyright in the Digital Single Market Directive was already highly problematic, but with the unexpected change of leadership of the dossier in the European Parliament last month, our initial concerns have escalated.
New Leadership, New Direction
German Member of the European Parliament (MEP) Axel Voss has replaced former MEP Therese Comodini Cachia as Rapporteur following her election to Parliament in Malta. Despite representing the same political group, Mr. Voss is diverges in opinion from her views in the draft Report on all the controversial provisions. We supported Ms. Comodini for having taken a very balanced and reasonable approach on the upload filter provision (Article 13), the press publishers’ right (Article 11), and the text and data mining exception (Article 3). The proposed amendments by Mr. Voss, however, and the recently adopted joint position by his political group (EPP), are unfortunately a sharp turn in the wrong direction for advancing forward-looking copyright reform.
The fact that the adopted EPP position essentially mirrors that of the European Commission demonstrates a lack of critical thinking and ambition towards the problems posed by the proposal. It also represents a missed opportunity to go further in truly modernising and harmonising key aspects of the copyright framework. For example, the EPP position explicitly rejects user-empowering tools, such as a mandatory panorama exception across the EU and a user-generated content exception.
Parliamentary Committees Adopt Misguided Amendments
In the meantime, the Legal Affairs (JURI) Committee leading the dossier in Parliament is receiving input for consideration from four other committees; three of which have already adopted their Opinions.
The Internal Market and Consumer Protection (IMCO) was the first Committee to adopt its Opinion, which resulted in a somewhat bittersweet outcome. Concerning the press publishers’ right (Article 11), the Committee unfortunately stuck by the Commission’s proposal. Minor mitigating amendments were nonetheless adopted, such as a proposal to safeguard referencing systems (e.g. hyperlinks) from falling in the scope of the provision; and the deletion of the retroactive application of Article 11. Yet, the adopted Opinion is generally critical of the role of news aggregators and search engines vis-a-vis press publishers’ bargaining power, and moreover proposes to extend this new neighbouring right to ‘print’ publications. We agree that securing sustainable funding for a strong free press is essential, but the use of such search and referencing tools has not proven disproportionately harmful to press publisher’s revenue flows since it drives traffic to their websites. The latter had been rightly pointed out by Ms Comodini in her draft Report.
In regards to the upload filter provision (Article 13), IMCO adopted the sensible amendments proposed by the Civil Liberties (LIBE) Committee rapporteur, MEP Michal Boni. While we continue to believe that Article 13 is best deleted altogether, this is a welcomed development, as Mr Boni ensures in his amendments that the provision and corresponding recitals do not conflict with the intermediary liability exemptions enshrined in the e-Commerce Directive, as well as with the Charter of Fundamental Rights of the EU. Being an associated Committee on Article 13, the IMCO Opinion has added ‘weight’ on this precise point; a strong message which the leading JURI Committee should acknowledge and adopt moving forward.
While the IMCO vote included balanced elements, the most recent Opinions adopted in the Committees on Culture and Education (CULT) and Industry, Research and Energy (ITRE), were a disaster on all fronts, making a bad proposal worse.
Both CULT and ITRE differed in views on the proposal for ancillary copyright (Article 11), but ultimately adopted amendments that broadened the scope of the original proposal to non-digital publications. In an attempt to appease public criticism, CULT adopted several amendments such as lowering the protection of this new right from twenty years to eight, and including additional text on “fair share of the revenue generated going to journalists”. It also proposed for Article 11 to not to apply for non-commercial use of press publications by individual users, but it is difficult to see how this would work in practice when such users tend to share press snippets via commercial platforms. This adds legal uncertainty rather than mitigate the provision’s impact. Perhaps most shocking was the amendment adopted in ITRE which makes press publishers’ rights also applicable to scientific publications, whereas this committee, representing research interests, should have affirmed its support for open access.
When it comes to Article 13, ITRE was somewhat more benevolent, trying to do away with some of the worst elements of the provision such as the reference to “content recognition technologies”. It nonetheless left the prospect of using measures to block the availability of copyrighted works or “other subject matter”, leaving the latter open to interpretation whether this would constitute some sort of ex-ante filtering. CULT, on the other hand, took the most radical approach of all committees in support of Article 13, so much so that the legality of its adopted text is put to question. Amongst its amendments is the extension in scope to ‘Information society service providers that store and/or provide to the public access to copyright-protected works or other subject matter uploaded by the users’, essentially banning the storage of legally acquired copyrighted material in the cloud. European cloud storage services would be forced to either install filters to impede uploads or conclude licensing agreements with rightsholders for uploaded content. This definitely does not remove barriers for European entrepreneurship and innovation.
Evidence-Based Policy Making Under Threat
Developments ringing alarm bells are not only taking place within the walls of the European Parliament. The copyright debate in Europe has become so political that certain stakeholders are testing the boundaries of reliable and legitimate policy making.
In Spain, since 2015 an ‘ancillary right’ for press publishers similar to the one proposed under Article 11 has been tried, and has failed. This is evidenced not only by the reported impact it has had on start-ups and small businesses, but also by its strong rejection by one of the largest newspapers in Spain, El Pais. Nevertheless, the Spanish copyright collection society CEDRO announced in late June this year that it had finalised its first licensing agreement with the online news aggregator Upday.com and claimed it as proof of the success of the system. What’s the catch? Well, Upday.com is owned by Axel Springer, the German publishing giant that is one of the most ardent supporters of the ancillary copyright for press publishers in Germany (and the EU). It appears that publishers that support the ancillary rights idea are paying themselves in an effort to justify this widely discredited proposal.
On a similarly disheartening note, the European Vice President responsible for the Digital Single Market, Andrus Ansip, in a recent statement claimed that upload filtering technology is ‘cheap’. He referred to presentations made by the company Audible Magic, whose filtering solution he says is available for “400, 500 bucks” per month. Armed with these ‘alternative facts’, VP Ansip tries to counter the arguments we and others have made that mandatory filtering technology on a massive number of platforms, many of them start-ups and SMEs, would severely hamper European innovation and entrepreneurship. However, the actual costs of filtering tools are far higher, and probably prohibitive for start-ups. Ansip’s statement is factually incorrect, and contradicts the Commission’s own Impact Assessment as well as recently published research.
Our Summer Wish-List
So what’s next? In September, LIBE will be the last Committee to vote and adopt its Opinion, which will focus particularly on Article 13. Leading Committee JURI is currently finalising the tabling of compromise amendments and is set to vote in October. The Parliament in principle will vote in plenary in December. With the Parliament entering its summer break next week, we sincerely hope its members will take this period to reflect upon the evidence laid down on the table by numerous legal experts and academics (some examples here, here, here, and here); and work towards a reaching a consensus incorporating views across the board. As for us, we’ll brush the current gloomy climate aside, and continue to take any opportunity to advocate for genuine forward-looking copyright reform.