Internal Market Committee took a vote on copyright. Why does it feel like a loss?

Contitution of may 3, 1791
Partial victory, bitter taste
Licentie

Politics is full of plot twists and we have witnessed that today during the IMCO Committee vote on its opinion regarding the copyright directive proposal. The new rights for publishers that seemed to be red line for so many Parliamentarians have made their comeback. The upload filtering provisions have been removed—despite some MEPs’ efforts to make them even stronger. If the reform package was actually a coherent vision instead of a wish list of shortsighted interventions, we could be celebrating an entirely different vote.

The upload filter is gone, the e-commerce Directive is intact

In a surprising move, the Committee adopted the EPP proposal to include Article 13 as drafted by LIBE rapporteur Michal Boni into IMCO’s opinion. IMCO rapporteur Catherine Stihler supported these amendments over the compromise she had made with other Parliamentary groups: S&D, ECR, ALDE, GREENS and GUE. Since it was quite clear that the deletion suggested by some Committee Members is not an option for this article, it is seems like one of the best possible outcomes that MEP Boni’s proposal has been picked up by IMCO.

Rapporteur Boni’s take on how platforms should cooperate with rightholders offers a rational distinction between entities falling under the scope of Article 13 and those protected by the e-commerce directive exemptions. It also steers clear of content recognition and technological measures as the go-to solutions for shaping that cooperation regarding MEP Stihler’s compromise amendment.

Red line? What red line?

The big surprise of the IMCO vote is the U-turn it took on the issue of new rights for press publishers (a.k.a “the link tax”). Rapporteur Stihler proposal to delete all of Article 11 had gained some traction in the Committee, which resulted in about a dozen other IMCO Parliamentarians also tabling provisions to remove it. In the vote, however, the amendments to delete were almost entirely rejected. The Commission’s version of Article 11 has been adopted with some tweaks: hyperlinking would not fall under the new right, and the new law would not be applied retroactively.

Despite previously demonstrated support for deletion of Article 11, many of these MEPs did not show up at the Committee session to vote. Their presence could have shifted the outcome. Instead, the absurd idea of paying publishers for the possibility to generate traffic to their content has been validated in the IMCO opinion.

Better online access to cultural heritage and protection of the Public Domain

The outcome of the vote is much better for those parts of the proposal dealing with issues faced by cultural heritage institutions. The opinion proposes to expand the new exception dealing with reproductions carried out by heritage institutions as part of their “public interest mission in preservation, research, culture, education and teaching”. It also adds a provision that requires Member States to recognise that once a work is in the public domain, faithful reproductions—including digitisation—shall not give rise to new copyright or related rights.

The opinion also proposes improvements to the articles dealing with out-of-commerce works. In line with requests from cultural heritage institutions, Article 7 now includes a fall-back exception that can kick in when the original licensing mechanism proposed by the Commission does not provide a workable solution. This will enable access to out-of-commerce works in sectors and Member States that lack representative collective management organisations.

Something for the users…

Users got two more things out of the IMCO vote, the first being a  freedom of panorama exception. This had not been included in MEP Stihler’s draft opinion, it seems like a no-brainer to add it. Clearly fighting against such a commonsense provision wasn’t a battle that the backers of creative industry wanted to wage. It has passed without any limitation as to the type of use (commercial or non-commercial), and indeed is the best case scenario for this exception.

The other good outcome is an exception for User Generated Content, which was adopted along the lines proposed by CULT Rapporteur Marc Joulaud. Digital use of protected content would be possible for the purposes of pastiche, parody, criticism, or entertainment, and is not limited to non-commercial cases. It requires that content be legally available, and that the user provide an indication of the source. Should this exception find its way to the final version of the directive, it would be a really good outcome for the users.

… but not all that they could have

The general harmonisation of exceptions, something that seems like a necessity for the Digital Single Market to work, has not been adopted. A bizarre proposal by MEP Philippe Juvin was adopted that destroys any synergies that could make users’ life much easier. If his proposal is retained, it would mean that any content obtained due to one exception could not be used in the context of another exception:

AM 394 – Philippe Juvin
Text proposed by the Commission: Amended text:
Article 5(5) and the first, third and fifth subparagraphs of Article 6(4) of Directive 2001/29/EC shall apply to the exceptions and the limitation provided for under this Title. Access to content permitted by an exception or limitation shall not give the beneficiary of the exception or limitation the right to use the content concerned in the context provided for by another exception or limitation.

Article 5(5) and the first, third and fifth subparagraphs of Article 6(4) of Directive 2001/29/EC shall apply to the exceptions and the limitation provided for under this Title.

For example, anything digitised under the right to reproduction could not be used under a TDM exception or used freely as part of  teaching activities. This a very substantial weakening of user rights and the principles of the EU copyright framework.

The educational exception, closely followed by COMMUNIA, has been made partially better, but a few problems persist. The scope of the exception includes both digital and non-digital educational activities performed by educational and also cultural heritage institutions. This is broader than the Commission’s proposal, but sadly does not cover nonprofits and other informal education settings. There are still limits with regard to the places and networks where educational uses can take place. Individual licenses will no longer take precedence over the exception, but extended collective licensing schemes will still be in play. Finally, a layer of protection has been added to exclude freely licensed material from the overall licensing schemes. This half-step forward is not adequate to support European education fit for the 21st century.

The whole is less than the sum of parts

Even though there are some considerable gains coming out of the IMCO vote, they mostly leave a bitter aftertaste. The “Boni’s 13” is more an exercise in the ability to reach political compromise than a serious attempt to fix the broken thinking that gave birth to the whole reform package. As much as it may pave the way for a civilised and efficient debate in the LIBE Committee, it is a depressing win.

The U-turn on the link tax could revive the ancillary copyright zombie. We felt it was slowly dying in the European Parliament, especially after its main proponent has left DG Connect. To be sure, the empty seats at the vote today did not help in keeping it out of the IMCO opinion.

Out of all the gains, those for cultural heritage institutions seem to be best defined. The changes to the copyright exceptions give these institutions instruments to take a greater advantage from the digital sphere. The changes in support of users are good, and will go a long way to making everyone feel reassured that engaging in commonplace creative activities online won’t turn them into copyright criminals. But should the compromise on Articles 11 and 13 be sustained across Committees, these rights will be exercised in an online environment continually governed by big global players. These stakeholders are leaving little room for content decentralisation and cultural diversity. So, after the IMCO vote, instead of opening the champagne, we’re breathing a sigh of relief.

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