The copyright reform remains an exceptional opportunity to close the discrepancies between present-day practices and outdated law. One of the pressing issues is solving the legal uncertainty for users and creators online. Creating online is part of our digital culture and whether it is allowed or not, occurs everyday. There continues to be a lack of legal clarity on how to deal with user-generated content made for non-commercial purposes ranging from funny memes to elaborate works that critique and reflect on the society we live in.
The European Commission’s proposal for the Copyright Directive lacks a user-generated content exception. This is worrisome, because it does introduce an article that could possibly lead to filtering content generated by users even though much of that content does not harm rightsholders. The recent IMCO vote where an exception for user-generated content (UGC) was adopted is a positive step forward in getting a UGC exception in the final Copyright Directive. However, we can’t let our guard down yet. JURI, the most important committee, will vote on its amendments later this year and it yet has to prove it will follow the precedence set by IMCO.
Opposition to the UGC exception
JURI led by Comodini did not incorporate a UGC expectations in its draft opinion. It hereby deviates from the other draft opinions such as those from the IMCO and CULT committee. Therefore a UGC exception can only be included via the proposed amendments by the MEPs. There are several committee members who have proposed amendments for the JURI committee either along the lines of the one proposed by Marc Joulaud, the Rapporteur for the CULT committee, or the one by Catherine Stihler, the Rapporteur for the IMCO committee.
Even though this is encouraging, there is a specific reason for concern. One of the proposed amendments for the JURE committee concerning a UGC exception stands out, because it negates the positive effects of a possible UGC exception. Yes, you read that right. It’s done in a clever, but harmful way.
Amendment 658 from MEPs Jean-Marie Cavada, Robert Rochefort and António Marinho e Pinto reads as follows:
Use of extracts from pre-existing works and other subject-matter in content uploaded or made available by users
(1) Member States shall provide for an exception to the rights provided for in
Articles 2 and 3 of Directive 2001/29/EC, point (a) of Article 5 and Article 7(1) of Directive 96/9/EC, and point (a) of Article 4(1) of Directive 2009/24/EC in order to allow for the use of extracts from preexisting works and other subject-matter in content uploaded or made available by users, other than in the course of their work, for purposes such as criticism, review, illustration, caricature, parody or pastiche, provided that the extracts:
relate to works or other subject-matter that have been lawfully made available to the public;
are accompanied by the indication of the source, including the author’s name, unless this turns out to be impossible; and
are used in accordance with fair practice and in a manner that does not extend beyond the specific purpose for which they are being used.
(2) Any contractual provision contrary to the exception provided for in this Article shall be unenforceable.
(3) This exception shall be without prejudice to the provisions of Article 13 of this Directive.
An exception that is not an exception
The amendment starts of well as if it were a normal UGC exception. Then comes the third paragraph that states that works that would fall under this exception would not be protected if article 13, the article that introduces the upload filter, applies to this work. This is extremely problematic. Article 13 as stated in the proposal of the Commission would apply to all online platforms where large amounts of user-generated content can be found. The far majority of user-generated content can be found on these online platforms. Thus, a UGC exception that does not protect user-generated content on these platforms is really not a UGC exception at all.
The rights of copyright holders should always be balanced against the rights of society
We need exceptions like the UGC exception because they give reasonable room for other valid societal interests. Digital cultural expressions that occur on a daily basis should be embraced. These expressions can be used for many different purposes such as criticism, review, illustration, caricature, parody or pastiche, or entertainment. These purposes might not have a clear commercial revenue, but they do benefit society in a fundamental way. They give insights into our habits and ideas or simply make us laugh. We need a UGC exception that can secure user rights online. This might be self-evident, but we do not need a UGC exception that does not protect user-generated content where it needs protection.