EU Copyright Rules: Provisional Deal Struck On Changes

The European Council’s Romanian presidency announced today it has struck a provisional agreement with the EU Parliament on a draft directive that makes changes to existing European Union copyright rules. The draft agreement, which will go before the full Council of member states and Parliament for approval, would make changes such as a controversial new “publishers’ right,” and strengthens copyright protections on online content sharing platforms. It also would introduce copyright exceptions for a range of purposes such as text and data mining, online teaching, and cultural heritage.

The European Council press release highlighting the draft changes is available here. The agreed provisional text may be available as soon as next week, a source said.

Highlights from the Council release are below:

“The draft directive addresses a variety of issues, which can be grouped together under three categories:

A) Adaptation of copyright exceptions/limitations to the digital and cross-border environment

The directive introduces mandatory exceptions to copyright for the purposes of text and data mining, online teaching activities and the preservation and online dissemination of cultural heritage.

B) Improvement of licensing practices to ensure wider access to content

The directive provides for harmonised rules facilitating the:

• exploitation of works that have stopped being commercialised (out-of-commerce works),
• issuing of collective licences with extended effect and
• rights clearance for films by video-on-demand platforms.

C) Achievement of a well-functioning marketplace for copyright

The directive introduces a new right for press publishers for the digital use of their press publications. Authors of works incorporated in the press publication in question will be entitled to a share of the press publisher’s revenue deriving from this new right.

As regards online content sharing platforms, the directive clarifies the legal framework within which they operate. Such platforms will in principle have to obtain a licence for copyright protected works uploaded by users unless a number of conditions provided for in the directive are met.

The directive also enshrines the authors’ and performers’ right to appropriate and proportionate remuneration upon the licensing or transfer of their rights, introduces a transparency obligation concerning the exploitation of licensed works and a remuneration adjustment mechanism, accompanied by a dedicated alternative dispute resolution mechanism. Software developers are excluded from these rules.” [end of release]

The agreed draft text appears to incorporate two articles that have been the subject of intense debate for many months, Arts. 11 (neighbouring right or snippet tax) and 13 (upload filters) (IPW, European Policy, 20 June 2018).

As to next steps, the Council said, “The provisionally agreed text will first have to be endorsed by the relevant bodies of the Council and the European Parliament. Following such endorsement, it will be submitted for formal adoption by both institutions.”

Tech Industry Concerns

The announcement of a deal was met with quick criticism from an industry group, which said the compromise text will face approval in the coming months. The Computer & Communications Industry Association (CCIA) issued this statement:

“The Computer & Communications Industry Association, public interest groups and many other stakeholders had in particular raised concerns about the proposed Articles 11 and 13.

Article 11 introduces an EU-wide neighboring right in news publications, popularly known as a ‘snippet tax’, which risks restricting the freedom of quotation online. This EU-wide proposal follows unsuccessful national laws in Spain and Germany and conflicts with the EU’s treaty commitments.

Article 13 weakens existing EU legal protections for Internet services. It is reported to require sites and apps, where users can post material, to make ‘best efforts’ to preemptively buy licences for anything that users may possibly upload. This will make it difficult for users, small publishers and innovators to thrive in the EU Single Market.

The agreement is however reported to include a mandatory exemption for text and data mining.”

CCIA Vice President and head of office Christian Borggreen was quoted as saying: “This is a lost opportunity to achieve a balanced and future-proof EU copyright reform. We fear the law could harm online innovation, scaleups, and restrict online freedoms in Europe. We urge governments and Members of the European Parliament to thoroughly assess the consequences of this text before officially adopting it.”

[Update: Washington, DC-based Public Knowledge also issued a statement of strong opposition along the same lines, here.]

 

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