Member of the European Parliament (MEP) Therese Comodini Cachia released her much awaited Draft Report on the European Commission’s proposal for a Directive on Copyright in the Digital Single Market. We have previously commented on the Draft Opinions by the Culture and Education (CULT) and Internal Market (IMCO) committees (see respectively blog posts here and here). The Opinions of these committees, together with those of the Industry & Research (ITRE) and Civil Liberties (LIBE) committees, are to be taken into consideration in the Report by the Legal Affairs (JURI) Committee leading the debate in Parliament.
As a general remark, we would like to applaud the efforts of MEP Comodini in her role as JURI rapporteur, in which she has taken a comprehensive and transparent outreach approach in consulting with a wide range of stakeholders over the last months. From a content point of view, we also generally welcome the balanced approach the rapporteur has taken in tackling the most problematic and controversial provisions of the Commission’s proposal. This report, together with the draft opinions by CULT, IMCO and ITRE, shows the clear need for significant amendments to the Commission’s proposal. Amendments are particularly necessary on three important points of concerns we have, and will continue to, put forward: the upload monitoring obligation (Article 13), the ancillary right for publishers (Article 11), and the limited scope in the proposed Text and Data Mining (TDM) exception.
‘Neutralising’ the Upload Monitoring Obligation Provision
Article 13 as proposed by the Commission would force internet intermediaries to use content identification technology to prevent users from uploading unlicensed copyrighted content. In our view, this provision is fundamentally flawed and best deleted altogether. As reflected in the open letter we recently signed with other civil society organisations, this provision would negatively impact the free speech of citizens who would see their content blocked even if it would qualify as a legal use of copyright content under a copyright exception. The incompatibility of Article 13 with the e-Commerce Directive, as well as with the Charter of Fundamental Rights of the EU, is also stressed in a new study by Dr. Christina Angelopoulos.
Deletion of Article 13 would be the preferred approach, but MEP Comodini improves on it substantially. She proposes to remove the obligation to filter uploads, brings the provision in line with the eCommerce Directive, and narrows its scope substantively. She focuses her amendments on the “effective implementation of agreements concluded between online service providers and rightholders for the use of their works”. In this respect, the rapporteur rebalances responsibilities in that it is up to the rightholders to correctly identify their work as their own or under a licence, and for service providers to guarantee the well-functioning of employed measures, with particular emphasis on ensuring that users can benefit from copyright exceptions.
Publishers’ rights: Tackling an Enforcement Problem with an Enforcement Solution
The context of the Commission’s proposal for a new publishers’ right is the shift in the market for advertising and loss of revenues for traditional press publishers. Securing sustainable funding for a strong free press is essential, but the publishers’ right proposed by the Commission is unlikely to serve that purpose as demonstrated in Germany and Spain, and as recently pointed out by the European Research Centres in their open letter to the European institutions.
In the explanatory statement of the JURI Draft Report, MEP Comodini makes a clear distinction on the different uses of press publications and their corresponding impact on press publishers’ financial interests. On the one hand she acknowledges that unauthorised scraping, reproduction, and republication of press articles is clearly illegal and harmful to press publishers’ interests. The Rapporteur therefore proposes in Article 11 to improve the ability of press publishers to act against infringing uses of their publications by providing them “with a presumption of representation of authors of literary works contained in those publications and the legal capacity to sue in their own name when defending the rights of such authors for the digital use of their press publications”. By striking down the ancillary right proposed by the Commission and targeting an enforcement problem with an enforcement solution, we believe MEP Comodini offers a very sensible solution that goes to the root cause of the problem. She also makes reference to the use of search and referencing tools and news aggregators that collect links to news articles. In this respect, she highlights that this practice “is not necessarily disproportionately harmful” to press publishers’ revenue flows since it drives traffic to their websites. Indeed it is hard to justify a new right for press publishers when, in fact, publishers already possess a number of tools to manage and control access to articles and other content.
Right to Read Equals Right to Mine
MEP Comodini has taken a similar position on the Text and Data Mining (TDM) exception as the IMCO and ITRE committees in their draft Opinions and opted for the exception to extend to any person “who has lawful access to works and other subject matter provided that reproduction or extraction is used for the sole purpose of text and data mining”. We have previously warned, as many others have, that if not expanded to other entities and purposes (e.g., journalism), the exception could potentially restrict the advancement of EU competitiveness and research. Restricting the scope of the exception to research institutions, as suggested by the Commission, would indeed deny European startups and companies engaged in training artificial intelligence systems a level playing field on the international market.
All in all, we welcome MEP Comodini’s sensible solutions to the most controversial provisions in proposal for a Directive on Copyright in the Digital Single Market. They reflect the importance of protecting users’ rights and freedoms in Article 13, providing an enforcement solution to an enforcement problem in Article 11, and ensuing the advancement of EU competitiveness and research in Article 3.
Having said this, it would be good to see incorporated in the JURI Report a stronger focus to not only fix the biggest problems posed by the proposal, but to go further in truly harmonising and modernising key aspects of the European copyright framework by, for example, empowering users with a User Generated Content exception and ensuring freedom of panorama across the EU.