European Parliament opinion slams European Commission for unbalanced copyright proposal

Spotprent op het bedrog van de firma C. de Bruyn & Zonen
Users rights need to be part of the balance!
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Earlier today Marc Joulaud, the CULT rapporteur for the proposed Copyright in the Digital Single Market directive, published his draft opinion on the proposed directive. Joulands draft opinion is the first of many similar documents dealing with the Commission’s proposal that will emerge from the European Parliament in the next weeks and while it will likely undergo significant changes it is a really promising start of the parliamentary process.

The draft opinion contains 85 amendments to the text of the Commission’s proposal that deal with all aspects of the directive. Over the next few days we will provide more detailed analysis of his proposals for a number of the issues that COMMUNIA has been focussing on such as the proposed exceptions for TDM and education, the new right for press publishers and the content filtering obligation for user uploaded content.

Users’ rights need to be a part of the debate

While we certainly do not agree with all of his positions, Joulaud’s draft opinion deserves to be praised. In line with our own analysis of the Commission’s proposal, Joulaud observes that the proposed directive is out of balance as it ignores many of the most pressing concerns of internet users:

It is the Rapporteur’s view that the proposal does not acknowledge the position consumers, as service users, now occupy in the digital environment. No longer playing a mere passive role, they have become active contributors and are now both a source and recipient of content in the digital ecosystem. […] digital practices of users do not benefit from legal certainty under the current copyright rules, in particular the exceptions and limitations, and therefore require a specific approach, a fourth pillar within this Directive.

We could not have worded this much better. It speaks to the unbalanced nature of the Commission’s proposal that the first opinion to emerge from the European parliament slams the Commission in such clear language. Given that it has blatantly ignored the feedback it has received from thousands of users through its own public consultations, the Commission only has itself to blame.

New exceptions are welcome…

As part of his “fourth pillar” Joulaud proposes the introduction of the new mandatory exception for User Generated Content and a mandatory Freedom of Panorama exception. We are very pleased to see that he has taken up our proposal for a user generated content exception. Similarly, his proposal for a Freedom of Panorama exception is a step in the right direction, but as we have argued before, it should also apply to commercial uses.

… but problematic ideas stay in the proposal.

Joulaud also proposes some limitations to the  press publishers right proposed in Article 11, and wants to strengthen the complaints and redress mechanisms included in Article 13 (the article that deals with mandatory filtering of user uploaded content). But the proposed modification to Articles 11 and 13 do not resolve the fundamental problems they create. We are of the opinion that both articles should be deleted from the proposal, especially the filtering mechanism for user generated content.

Overall, MEP Joulaud needs to be complimented for the approach that he has taken with his opinion that addresses almost all of the glaring omissions in the Commission’s proposal. In addition to recognizing the need for providing more room for consumers’ legitimate practices, the opinion also contains amendments that address issues raised by Cultural Heritage Institutions, and strengthen the rights of authors and performers vis a vis their contractual partners. As such, the opinion provides the basis for a number of important improvements that would turn the Commission’s proposal into a more balanced legislative intervention.

Unfortunately, Joulaud stopped one step short of addressing the obligation to filter user uploaded content, which from our perspective remains the most problematic aspect of the Commission’s proposal.

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