EU Copyright Reform Meets Resistance From Stakeholders, Some Governments

With a vote in the lead European Parliament committee imminent on European Commission plans to revamp copyright rules, industry stakeholders, digital rights activists and even some EU member states are troubled by various legislative amendments and EU Presidency compromise proposals.

The EC published its proposal for a directive on copyright in the digital single market in September 2016, and the plan is now working its way through the European Parliament and Council. The document is here: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52016PC0593.

Among other things, the draft recommended the creation of a right for the reproduction and making available to the public of press publications (the publishers’ or ancillary right, also called the “snippet tax”) (Article 11); and called for information society service providers to be held liable for monitoring their site for infringing uploads by users (Article13). The plan would also require member states to provide an exception to the reproduction right to allow research organisations to perform text and data mining (Article 3).

The EC proposal has already been vetted by several European Parliament committees and on 10 October was expected to be voted on by the lead Legal Affairs Committee (JURI). [Update:] The vote in the Legal Affairs Committee will very likely not happen on Oct 10 as scheduled, as negotiations between the groups are proving tricky, Reda’s office told Intellectual Property Watch later. “Rapporteur Axel Voss said he hopes to get it done ‘by the end of the year,’ with 7 December looking likely,” they said, adding that they will keep the timeline here up to date: https://juliareda.eu/eu-copyright-reform/

It has attracted strong criticism (IPW, Copyright, 9 March 2017) from, among others, Mozilla, European Digital Rights initiative (EDRi) and German Member of the European Parliament Julia Reda, of the Greens/European Free Alliance. The European Publishers’ Council (EPC), however, has been among those stakeholders lobbying hard for the ancillary right.

Ahead of the JURI vote, Mozilla urged EU citizens to “phone their lawmakers and demand better reform.” It offered people a call tool, changecopyright.org, to contact MEPs. “Many aspects of the proposal and some amendments put forward in the Parliament are dysfunctional and borderline absurd,” said Mozilla Senior EU Policy Manager Raegan MacDonald.

The internet company wants the text and data mining exception broadened to others such as independent researchers, advocacy groups, journalists, librarians and startups, a spokesman said. Mozilla is also calling for rejection of the ancillary copyright provision which, the spokesman said, “would mean anyone sharing a link with text, like a news headline or a short blurb about the article, could be charged a license fee from the publisher responsible for the content.”

Moreover, forcing internet platforms to monitor uploads by users to protect against copyright infringement “would impose an immense, gratuitous burden on services that have huge economic and social benefits” and would harm the freedom of expression of users, creators and innovators who use online platforms since platforms would be motivated to remove or prevent user-generated content altogether, Mozilla said.

[Second Update:] The Max Planck Institute for Innovation and Competition responded to member states’ questions about the legality of Article 13 in a paper (available here: http://copybuzz.com/facts-figures/4-times-no-article-13-censorship-filter-confirmed-illegal/). The article, “4 Times No: Article 13 Confirmed as Illegal,” concluded that the provision and its corresponding recitals create legal uncertainty because of undefined legal concepts and “barely understandable formulations.” They also fail to specify how they align with the Information Society Directive and E-Commerce Directive; are inconsistent with the latter directive; and could enable abusive behaviour that threatens fundamental rights such as free speech.

Does Upload Monitoring Breach Human Rights?

Meanwhile, in a document dated 25 July and leaked by Statewatch on 5 September, the governments of Belgium, Czech Republic, Finland, Hungary, Ireland and the Netherlands asked the Council’s legal service to assess whether Article 13, the upload monitoring provision, complies with the Charter of Human Rights and the E-Commerce Directive in light of judgments of the European Court of Justice. The document is here: http://statewatch.org/news/2017/sep/eu-copyright-ms-questions.htm.

The leaked document “demonstrates clearly that a number of European governments disagree” with the EC assertion that Article 13 complies with existing law and European fundamental rights, the Computer and & Communications Industry Association said. It urged the EU institutions to “focus on a thorough written analysis” of the proposal’s compatibility with fundamental rights before starting negotiations again.

“Some preliminary general remarks have been provided by the Council legal service as regards the relation of the proposed reform and the relation with the Charter of Fundamental Rights of the EU and the e-commerce directive, but so far no legal written opinion has been produced,” a Council press officer told Intellectual Property Watch.

Presidency “Pushing Ahead” Despite Warnings

Estonia, meanwhile, which currently holds the EU Presidency, floated compromise text to governments in late August which appears to have riled everyone. The leaked draft is here: http://statewatch.org/news/2017/aug/eu-council-copyright.htm.

The document shows that over the summer Estonia “has been pushing the other Member States to strengthen indiscriminate internet surveillance,” EDRi blogged.

The text suggests two options for the two most controversial provisions – ancillary copyright and upload filters, EDRi said. Option A for filters retains the EC’s original proposal of having in place a filter under the control of internet platforms and other companies that host online content. Although the compromise language deletes mention of “content recognition technologies,” there is actually no way to prevent the availability of certain content without scanning it all first, it said.

Option B is even more extreme, EDRi said. It again attacks the liability regime for online companies established by the E-Commerce Directive, and attempts to clarify what a “communication to the public” is, stating that platforms and their users would be liable for the copyright-infringing content uploaded by users, the digital rights group said. Reda slammed the Presidency for “pushing ahead unperturbed” despite “incessant warnings by experts” to scrap Articles 13 and 11.

Publishers were also unhappy with the Presidency text. The EPC noted in a legal analysis of the draft compromise that “all committees of the European Parliament which have so far made their vote on the draft Directive support the publisher’s right as proposed by the European Commission.” The Presidency, however, offered two options to the right. One endorses the EC approach in principle but “substantially reduces” the right by requiring that protected snippets be an “expression of the intellectual creation of the author.”

Option B seeks to replace the EC proposal with an entirely different regulation, the EPC said. It advocates a statutory presumption instead of a publishers’ right which would merely entitle press publishers to conclude licenses and take legal measures over the digital use of the works and other subject matter included in press publications, it said.

“Neither of the two options is a compromise,” the EPC said. They offer insufficient protection of press publishers with regard to the digital use of their publications and “run contrary to the Commission’s intention.”