Legal Affairs Committee Stops Short of Protecting User Rights

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we need some forward-looking changes
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MEP Therese Comodini Cachia, the Rapporteur on the Copyright in the Digital Single Market Directive in the European Parliament’s Committee on Legal Affairs (JURI), is currently  perhaps the most influential person on copyright policymaking in Brussels. Last week her draft report was officially published. Communia has already praised Ms. Comodini for calling the publishers’ bluff on ancillary copyright and for proposing to really unlock Europe’s research potential by removing the harmful and unworkable restrictions to text and data mining that the European Commission proposed.

Given Ms. Comodini’s deep understanding of the interplay between law, society, and technology, and the shrewd manner in which she solved several legal Gordian Knots in her draft, it comes as a disappointment that we fail to see some forward-looking changes that would really make the European copyright framework fit for the Digital Single Market.

Freedom of Panorama

Some two years ago the European Parliament had its first heated discussion on the question of Freedom of Panorama. A lot has happened since then, including introduction of a new copyright exception in support of Freedom of Panorama in both France (limited) and Belgium (full).

The European Commission ran a consultation on Freedom of Panorama and, according to the synopsis of the public feedback, consumers, institutional users, service providers, professional photographers and architects expressed that the introduction of a mandatory exception would have a positive impact on their activities. In its communication on promoting a fair and efficient European copyright-based economy in the Digital Single Market, the European Commission “confirms the relevance of this exception” and “strongly recommends that all Member States implement this exception”.

Last but not least, Marc Joulaud, the French conservative Rapporteur for the Culture Committee (CULT) from the EPP Group, proposed in his draft opinion to introduce a mandatory Freedom of Panorama exception in the EU. Although the wording wouldn’t really solve many everyday problems, it must be regarded as a first compromise offer and willingness by the EPP to improve user rights online.  

Given all these massive shifts in the Council and the European Parliament toward a Freedom of Panorama exception, the rapporteur and her shadows must engage with this issue and work toward finding a way to include it.

User-Generated Content

Similarly, another user rights aspect is gaining enormous momentum. Both Ms. Stihler (S&D, IMCO) and Mr. Joulaud (EPP, CULT) have already proposed a user-generated content exception in their respective draft opinions. Rapporteur Stihler’s broad scope is especially important, as it would permit a person “to use an existing work or other subject matter in the creation of a new work or other subject-matter, and use new work or other subject matter”. In other words, it doesn’t matter what a user needs the protected content for, he or she may use it as long as they create something new with it. On the other hand, CULT’s draft opinion proposed a UGC exception to apply without prejudice to commercial/non-commercial uses, a positive move because the distinction between what is commercial vs. non-commercial is very often impossible to make online. But, there is no doubt user-generated content has become an important issue in the copyright reform debate.

Legalising the everyday practice of using parts of works to create content is necessary in order to establish a copyright framework than can be both protected and respected. It is also common sense. Such uses of extracts or quotations typically do not cause significant economic harm to the rightholders concerned. On the other hand, they significantly help user-generated projects improve access to high-quality educational materials and our cultural heritage.

The proposal to include the idea of user rights in this Directive is laudable, and potentially a giant step forward for Europe. We are finally getting to a place where we can openly discuss the right balance between authors’ and users’ rights. However, given that users’ rights in the cases of Freedom of Panorama and User-Generated Content are simultaneously authors’ rights, it is a big letdown to find them ignored in the current JURI draft opinion.

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