Last week, the German Council delegation shared a “non-paper” with proposals to mitigate the negative effects of article 13, which screamed “Houston, we have a problem”. On Monday the Romanian Council Presidency shared a working paper on article 13 that makes similar attempts to reduce the negative impact of article 13. And yesterday the representatives of the audiovisual and publishing sectors called for the suspension of the negotiations on article 13. These moves show that (1) upload filters are gaining opponents (or losing supporters) at a fast pace and (2) lawmakers are starting to envision the social and political consequences of this ill-conceived law proposal.
The Romanian proposal attempts to save the sharing culture, but fails spectacularly
Ahead of the Council Copyright Attachés meeting that took place yesterday, the Romanian Council Presidency proposed a possible compromise solution on article 13 that 1) exempts platforms from liability in certain situations (e.g. if they made best efforts to obtain an authorization from the rightsholders) and 2) introduces a mandatory EU-wide user-generated content exception to copyright, which allows users to upload and make available content generated by themselves, but not by others. The Romanian compromise further suggests to continue to discuss if online platforms that are microenterprises and small-sized enterprises shall be exempted or not from the obligations imposed by article 13.
The fact that the compromise solution presented by the Romanian Presidency contains the introduction of a UGC exception shows the intention to make a positive contribution to the negotiations. However, the drafting is far from bringing a meaningful solution for users. To start, the proposed exception only allows the use of parts of works, making it impossible for users to share user-generated content containing an entire artwork (e.g. a meme using a painting in its entirety) or an entire short work (e.g. a meme using a poem in its entirety). Then, it only allows users to share content generated by themselves, and not by others! What is the point of sharing a meme on an online platform, if other users cannot interact with it, by sharing it too? Continue reading
This week Politico.eu has shared a “non-paper” prepared by the German Council delegation on article 13, ahead of the Council Copyright Attachés meeting that took place on Wednesday. In this paper Germany proposes to mitigate the negative effects of art. 13 by 1) exempting platforms with a turnover of up to 20 Mio. Euros per year from the obligations imposed by art. 13., 2) exempting platforms from liability in certain situations (e.g. if they made best efforts to obtain an authorization from the rightsholders), and 3) introducing a mandatory EU-wide user-generated content exception to copyright, subject to the payment of a fair remuneration to the rightsholders.
A Christmas tale
It is clear that there is a social legitimacy problem with a law proposal when, in every household visited during the Christmas holidays, someone starts talking about it. Children as young as eleven, teenagers and parents all knew about the existence of an infamous law proposal, which they referred to as “Article 13”. The familiarity with which they pronounced the number of the article was such that an undiscerning observer would believe they had been closely following the copyright reform and had actually read the European Commission’s proposal on upload filters.
Sure enough the children and the teenagers had not read the legal provision, neither had their parents. Their knowledge was based on the Youtube videos on art. 13 produced by their favourite Youtubers and/or on the newspaper articles that (finally) had started reporting on the issue, after those videos had become viral (one has now close to 5 million views).
This was the rule for every household, except one, where one of the parents – let’s call him a software and platforms entrepreneur – had not only read the proposal, but could easily point out the flaws on the lawmakers reasoning. Continue reading
After last weeks inconclusive “final” trilogue, the discussions about the EU copyright reform package are paused for their third (!!) winter break. When they resume in January under the Romanian EU presidency the negotiators will be under a lot of pressure to find a politically viable compromise on Articles 13 and 11 and a few other controversial parts of the proposal. In the shadow of these more controversial elements of the proposal the negotiators have managed to provisionally agree on a large number of other issues and among these there are a number of positive developments.
From our perspective the most positive development is the fact that based on an amendment proposed by the European Parliament, the negotiators have provisionally agreed to include a Public Domain clause in Article 5 of the Directive. This clause intended to ensure that reproductions of works in the public domain can no longer be protected by copyright or neighbouring rights (as it is currently the case in a number of EU member states such as Germany and Spain). This is not only welcome because it would solve a real problem or because it would turn one of the recommendations of our Public Domain Manifesto into law, but also because it will be the first ever mention of Public Domain in EU copyright framework! Continue reading
The Court of Justice of the European Union has not had many opportunities to review the EU legal framework for exceptions and limitations to copyright, and in the few cases where it had to interpret an EU exception, it has not always adopted positions that are favourable to the beneficiaries of the exceptions. Yet, there is one case, a landmark case for user rights, involving the Technical University of Darmstadt and publisher Eugen Ulmer KG, where the Court exemplary defended the position of such beneficiaries against the rights holders. Now the EU lawmakers want to adopt a law that fundamentally undermines the protection granted by that CJEU ruling to user rights.
How did the CJEU ruling protect user rights?
The TU Darmstadt case revolved around the EU exception that allows public libraries and other institutions to digitize works in their collections and make them available in dedicated terminals located in the libraries reading rooms or elsewhere on their premises (art.5(3)(n) of the InfoSoc Directive). The dispute had several legal issues, but the one important for the analysis of art 4, paragraph 2 of the proposed Directive for Copyright in the Digital Single Market (DSM Directive) is whether the libraries could rely on said exception even if publishers were offering to license a digital version of the books.
The EU exception embodied in art.5(3)(n) of the InfoSoc Directive covers “works and other subject-matter not subject to purchase or licensing terms”. Publishers argued that the mere fact that the rightholder offers to conclude a licensing agreement with a library is sufficient for ruling out the exception. The CJEU considered, however, that, if the mere act of offering to conclude a licensing agreement were sufficient to rule out the application of the exception, such interpretation would:
- Be difficult to reconcile with the aim of the exception, which is “to maintain a fair balance between the rights and interests of rightholders, on the one hand, and, on the other hand, users of protected works who wish to communicate them to the public for the purpose of research or private study undertaken by individual members of the public.”
- Imply that “the rightholder could, by means of a unilateral and essentially discretionary action, deny the establishment concerned the right to benefit from that limitation and thereby prevent it from realising its core mission and promoting the public interest”.
- Be “liable to negate much of the substance of the limitation provided for in that provision, or indeed its effectiveness”, since the limitation would apply only to those increasingly rare works of which an electronic version is not yet offered on the market.
For the entire duration of the current EU copyright reform we have advocated that the press publishers right be deleted. Publishers already benefit greatly from the copyrights they have in their content, and don’t need an additional exclusive right to protect or exploit those rights. As is clear from past experiments with the right in Germany and Spain, an additional right for press publishers will not support quality journalism, increase the diversity of media content, or grow the digital single market. Instead, it will negatively affect access to information and the ability for publishers to share using the platforms, technologies, and terms beneficial to them. The existing problem can be addressed by observing a legal presumption that press publishers are entitled to enforce the rights over the works or other subject matter that are licensed to them.
But here we are now years later in the thick of the trilogue negotiations, and the EU legislator is finally trying to figure out what to do about Article 11. Similar to Article 13 and content filter, we expect that the final compromise text of the directive will include some version of the press publishers right.
The waivable press publishers right
Our long-held view remains: Article 11 should be removed from the copyright directive. The provision is patently harmful to journalism, access to information, and the digital single market. The option to make the press publishers right waivable is simply one way to slightly improve the press publishers right if deletion is impossible. If the negotiators can’t be convinced by the mountains of research, empirical evidence observed in prior trials, and near universal public opposition to this unnecessary right, then the legislator must do everything it can to mitigate the negative effects that would be faced by news publishers and news seekers in the EU. Continue reading
This week, Politico.eu has shared a “non-paper” prepared by the European Commission on article 13, ahead of the next trilogue on 13 December. The Commission has been tasked during the recent trilogue meeting with proposing a compromise solution on the issue of “mitigation of liability in the absence of a license”, in face of diverging views between the European Parliament and the Council.
In general, any direction on this piece of regulation seems to be lost, with actors participating in the trialogue willing to treat the article like a puzzle, in which puzzles can be rearranged in any way possible – beyond the scope of any previously negotiated and legitimized mandate. The process once again proves to be obscure and lacking with regard to basic rules of participatory policymaking.
The Commission was given several guidelines. These include an assumption that platforms do communicate to the public and need to obtain licenses or that automatic blocking should be “avoided as much as possible”, but is also not forbidden.
Earlier this week, we published four principles, based on which we plan to evaluate the proposed language for article 13. We believe that any version of Article 13 that does not take these four principles into account will need to be rejected in the final vote taken by the European Parliament.
We decided to check the Commission’s proposal, included in the non-paper against our principles. This has been made difficult by the fact that what is proposed in the non-paper is in many ways vague. Once it becomes more substantial, we will be able to make a definitive judgement. But even now, lack of details on some issues – such as protection of content fitting copyright exceptions from overfiltering – is telling. Continue reading
We have argued again and again that copyright reform is also fundamental rights matter – therefore we co-signed an open letter to the European decision-makers asking them to add human rights safeguards to Article 13 of the proposed Copyright Directive on the Digital Single Market throughout the negotiation process.
The fundamental rights safeguards crucial for ensuring compliance of the new Directive with the Charter of Fundamental Rights are in accordance with our four principles for minimising harm to users, creators and the internet. The letter signed by 27 fundamental and digital rights organizations raises concerns about the current state of play for Article 13 and calls for:
Platforms control all information available on the internet and they are empowered to rank and take down content at their discretion. These platforms serve “the internet” as we know it now. Internet platforms are able to make decisions about freedom of expression with no transparency or accountability and the proposed Directive does not change that. In cases where content is blocked or taken down, it is critical that they properly justify their decisions; decisions that should be subject to proper redress mechanisms to ensure free speech and freedom of information. Besides providing an alternative dispute resolution, the EU could provide, for free, legal mechanisms across the EU to settle disputes between users, copyright holders and internet platforms.Continue reading
Later today the negotiators of the Commission, the European Parliament and the Council will meet for the 4th trilogue meeting. After having dealt with less controversial parts of the proposal during the three preceding meetings, tonight, will finally see a discussion about Article 13 of the proposed DSM directive.
Given that all three legislators bring similar versions of article 13 to the table, we can expect that a final compromise text will include some version of the article 13 upload filters. There is still a good chance that the negotiations will be inconclusive or that the eventual outcome of the trilogue negotiations will not be approved by either the Member States or the Parliament (which would mean that the directive will fail and there will be no upload filtering requirement for the foreseeable future). But in the context of the ongoing trilogue, the deletion of article 13 (which has been our position so far) is not an option anymore.
This raises the question of how the damage that article 13 will do to the internet ecosystem and freedom of expression can best be contained. Before we do so let’s take a quick look at the positions that are on the table:
EP position: general blocking of all unlicensed content
The provision adopted by the European parliament can only be described as a total disaster. As the result of a misguided attempt to remove the mention of “measures” from the text of the article the European Parliament adopted a version of article 13 that makes platforms liable for copyright infringements for every single work uploaded by their users. This would include any photo, drawing or text uploaded by a user, regardless if these are old works, works that have been created for the express purpose of being shared widely, or the latest blockbuster movie. As a result of making platforms liable for all works uploaded by their users, they are practically forced to install filters that will block everything that has not been licensed to them. In other words, the EP version of article 13 would turn open platforms into platforms that distribute content licensed by the entertainment industry and nothing else. Continue reading
In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we are attending the 37th session of the Committee, which is taking place in Geneva from 26 to 30 November 2018.
The following is the general statement made by Teresa Nobre on Limitations and Exceptions (Agenda Items 6 and 7):
One of the certainties in copyright policy discussions is that most arguments are made purportedly on behalf of individual creators. Case in point is the EU copyright reform, where the music industry is claiming that Article 13 will benefit creators, where publishers are claiming that they need a publishers right so that journalists get properly rewarded, and where YouTube is claiming that Article 13 will hurt creators. In most of these cases creators are merely used as pawns in the game, in which large intermediaries on both sides of the debate try to ensure that they can gain or maintain as much control as possible over the distribution chain for themselves.
With all this attention for the wellbeing of individual creators it is surprising how little attention has been paid to another provision of the proposed copyright directive. Even worse, a proposal by the European Parliament to include a measure that would directly benefit authors and performers (at the expense of rightsholders pretending to act on their behalf) is currently is facing opposition from Member States.
Under the title “Measures to achieve a well-functioning marketplace for copyright” the Commission had proposed a number of measures aimed at strengthening the position of creators in contractual relationships with intermediaries. Specifically Article 14 introduces a transparency obligation for intermediaries towards rightsholders and Article 15 contains a contract adjustment mechanism intended to give creators some recourse if their works ends up being much more successful than originally envisioned and after which they have already signed their rights away.
From the get go these measures had been criticised by organisations representing performers as not strong enough to really improve the negotiation position of creators. These have been advocating for an unwaivable right to receive equitable remuneration (something that we considered to be problematic because it would limit the ability of creators to use open licenses).
These calls for such an unwaivable right were ignored, but in september the European Parliament included the addition of a right to fair and proportionate remuneration. It is one of the few positive elements in an otherwise disastrous position. Where an unwaivable right would have made it impossible for creators to freely share their output (if they wanted to do so), the language proposed by the European Parliament should help to get more money into the hands of those creators that actually want it. Continue reading