European Commission Copyright Reform Proposal Sparks Many Jeers, Some Cheers

European Commission plans to overhaul EU copyright rules, officially published today, have prompted strong support and opposition. Controversy centres in particular around two proposals: The requirement that online services monitor against user-generated uploads of copyright-protected content, and the proposed grant of a “neighbouring right” to press publishers.

Far from updating Europe’s copyright landscape, several internet provider and telecommunications stakeholder groups said, the EC plan will take the region backwards.

The package also outlined plans for rights clearance for broadcasts in their country of origin; a legal mechanism to make collective licensing easier for out-of-commerce works; a rash of new copyright exceptions; and implementation of the WIPO Marrakesh Treaty to Facilitate Access to Published Works for Persons who Are Blind, Visually Impaired, or Otherwise Print Disabled.

The legislative proposals, part of the EU’s digital single market strategy, encompass two regulations and two directives aimed at modernising copyright rules, the EC said.

A fact sheet on the copyright reform is available here.

Neighbouring Rights

Newspapers, magazines and other press publications have benefited from the shift from print to digital and online services like social media and news aggregators, but have also suffered from lower advertising revenues and more problems licensing and enforcing their rights, the EC said in a press release. The draft directive introduces a related right similar to that already held by film and record producers and other players, it said.

The neighbouring right “recognises the important role press publishers play in investing in and creating quality journalistic content” needed for access to knowledge in democratic societies, the EC said. The directive also requires publishers and producers to be transparent and to tell authors or performers about profits they made with their works, and establishes a mechanism to help creators win a fair share when negotiating royalties.

Internet service providers and communications companies called the neighbouring right a setback for the digital economy.

The right “will make it harder for Internet users to find information and move expensive for startups to innovate, at a time with continued innovation in news technology is necessary,” said the Computer & Communications Industry Association, whose members include computer, communications and internet industry businesses. The proposal paves the way for news article “snippet taxes” and gives media companies a new power to control the distribution of news articles for 20 years, said the European Internet Services Providers Association (EuroISPA).

But the European Publishers Council, which has lobbied hard for a neighbouring right, said its readers will “only benefit from further investment in professional content and quality journalism made by publishers.” Publishers will still provide share buttons to readers can share and link articles, said EPC Executive Director Angela Mills Wade. “Contrary to the widespread scaremongering, the link is not under threat.”

“Nothing we are asking for would affect the way that our readers access publishers’ content, or share links on social media or via apps and email to friends and family,” said an EPC briefing paper. Nor are publishers interested in mandatory payments for snippets or a links, or “Google,” tax, it said.

User-Generated Content Filtering

Some online services that allow users to upload copyright-protected material have become key channels for content distribution but don’t always give creators the chance to decide on the use of their content or to be remunerated, the EC fact sheet said.

The draft copyright directive aims to reinforce the position of rights holders to negotiate and make deals for the online exploitation of their works by online service providers with a significant impact on the online content market that store and provide access to the public to user-generate content.

The draft requires service providers to “take appropriate and proportionate measures” to ensure the protection of user-uploaded content, such as by putting in place content recognition technologies. Rights owners and user-uploaded content services must cooperate on such measures, the EC said. The services will also have to be more transparent with rights holders on the measures used and their efficiency, it said.

This proposal is “backward-looking, to the detriment of Internet users’ fundamental rights and Europe’s creativity, innovation and research,” said CCIA Europe Public Policy Manager Maud Sacquet. She accused the EC of breaking its promise not to reopen the e-commerce directive, which bans general monitoring by service providers of content from users. Requiring content filtering technologies could mean thousands of websites becoming liable for wrongdoing by their users, she said.

The plan rocks the legal foundations of Europe’s digital economy, namely, the intermediary liability safe harbours of the e-commerce directive, said EuroISPA. Many people remix, produce and share videos, but because of unclear copyright rules they risk having their creations taken down by YouTube, Facebook and others, said European Consumer Organisation (BEUC) Director General Monique Goyens. The EC plans “will make things even worse but imposing technical measures to remove allegedly unauthorised content,” legitimising the arbitrary removal of consumers’ own creative works, she said.

Libraries and cultural heritage institutions had high hopes for copyright modernisation, but the EC proposals are “incomplete” and often undermined by measures that would reduce the effectiveness of such organisations, said the International Federation of Library Associations and Institutions (IFLA). Among other things, it said that while the proposal was right to allow text and data mining on legally accessible materials mandatory, permitting TDM only in certain circumstances will just prolong uncertainty faced by researchers and ignores the “fundamental principle that facts and data should not be copyrighted.”

But IMPALA, which represents independent music companies, said the proposal is a “good first step to help the legal framework to catch up with market reality by clarifying the situation of platforms which provide large scale access to music and other protected works.”

Cross-Border TV Access

Another proposal attempts to address problems of copyright clearances across borders for TV and radio programs. It establishes that the rights needed for the online services of broadcasters that are directly related to their broadcasting (such as online simulcasts of their satellite broadcasts) must be cleared where the broadcaster is established (country of origin”), allowing broadcasters to make most of their content available online in other member states, the EC said.

The draft regulation does not cover video-on-demand services. However, the EC said it wants to help negotiations to increase the availability of EU works on VoD platforms, so will introduce a negotiation mechanism in each member state to make it easier to make licensing deals for the online exploitation of audiovisual works.

The EC also proposed a legal mechanism to facilitate collective licensing agreements for all types of out-of-commerce works, defined as those still protected by copyright but no longer available to the public through the usual commercial channels.

Extending the country of origin principle, even when limited to certain broadcasters’ activities online, “is unwelcome,” and could jeopardise investment in audiovisual works, said the Association for Commercial Television in Europe. The proposal addressing the responsibility of online service providers that enable access to protected works, however, is a “step in the right direction,” it said.

Copyright Exceptions

The reform package also includes a proposal to require all EU countries to introduce a mandatory exception or limitation that covers digital uses or works for illustration for teaching, as well as a mandatory exception to allow research organisations acting in the public interest to carry out text and data mining of protected content to which they have lawful access without the need for prior authorisation. The exception won’t apply to commercial companies, the EC said.

Another mandatory exception would allow cultural heritage institutions to copy works in a way that’s suitable for the digital environment. Yet another would allow member states to implement the Marrakesh Treaty into their national legal systems, along with a proposed regulation governing the exchange of accessible format copies with third countries which are parties to the accord.

The Association of European Research Libraries said among other things that the text and data mining exception should not be limited only to public interest research bodies but extended to private sector companies to improve university-industry knowledge transfer and meet the needs of the big data economy.

What Was Left Out

Several proposals under consideration were omitted from the copyright reform package, to the annoyance of various stakeholders.

BEUC’s Goyens complained that the EC plans didn’t put an end to geo-blocking of online services. EuroISPA criticised the EC for passing up the opportunity to introduce a “panorama exception” to remove the risk that photographers will be sued by architects when they take a picture with a building in the background.

The Society of Audiovisual Authors accused the EC of shying away from tackling the problem of the uneven negotiating position between audiovisual authors and their producers and stopping short of providing an unwaiveable right to remuneration.

The copyright directive “fails at every level,” said European Digital Rights, which singled out obligatory filtering of uploads as the worst part of it. The directive needs approval from the European Parliament and Council, and EDRi urged people to contact their national and EU legislators and “say STOP!”

IFLA noted “conspicuous gaps” in the copyright measure, such as on e-lending, remote access to library resources via closed networks, and cross-border collaboration.

Mozilla Chief Business and Legal Officer Denelle Dixon-Thayer called the proposed framework “disheartening,” adding it doesn’t update EU copyright law for the digital era; introduces the “failed and harmful snippet tax”; and would raise barriers to entry for start-ups, coders and creators.

[Update:] CISAC – the International Confederation of Societies of Authors and Composers – called the Commission “Copyright Package” a “good starting point towards addressing the unfair situation for creators in the digital market.” The group called for European institutions to “take further measures to secure fair remuneration and a better future for creators online.”

“Europe is waking up to the global community of creators calling for urgent action to secure a fairer digital market,” CISAC Director General Gadi Oron said in a statement. “The proposal is a step in the right direction but additional steps are required to ensure creators receive fair remuneration and to prevent abuse of the existing legal framework by online intermediaries. We are looking at the European Parliament and the Member States for more significant action towards a better future for creators in the digital marketplace.”

CISAC President Jean-Michel Jarre stated: “The European Commission has made an effort to respond to the chorus of voices calling on government support to address the unfair situation in today’s digital market, where major players are using the works of creators to generate colossal revenues without fairly remunerating them. In Europe, given its great richness of talent, European institutions bear the responsibility in protecting its creative community and securing a better future for new generations of creators.”

[Added:]

Responding to the new EU copyright rules, David Taylor, partner at Hogan Lovells, said:

“This proposed modernisation of copyright in the EU is going to come in for some serious debate.

“Whilst it could be ground changing for many User Generated Content (UGC) Platforms it is likely to be less so for YouTube for instance, which is often cited as not paying artists sufficiently for their music/videos.  We can all agree that artists should be paid for their work, but how do you define “sufficient” in the modern digital era which itself enables far easier and greater distribution and thus greater potential revenue?

“YouTube does have commercial agreements in place with rights owners, generating several billion dollars in licencing fees to the music industry to date.  Whether this directive would actually change how YouTube operates is debatable though.  It certainly won’t affect the existing state of the art Content ID system which YouTube employs enabling “take down and stay down” which works well.  Also the proposed legal rights being given to news publishers may not differ substantially to those they enjoy as copyright owners so we will have to see how that plays out with Member States needing to adopt national laws to transpose the directive – with the inevitable variation from one member state to another and subsequent conflicting positions.

“It is claimed that this directive is a “significant and historic step” but to what?  Hopefully it will not become a significant step towards the balkanisation of the internet as we know it with a future for consumers filled with geo-blocking of content. In any event the battle lines are drawn but we still have a long way to go, through the European Parliament, out to the Member States for transposition, continued conflicts and then ultimately up to the CJEU to try to answer the questions this directive raises.”