Earlier this week the JURI committee of the EP held the first hearing on the proposed Copyright in the Digital Single Market directive. This hearing officially kicks off the process through which the European Parliament will develop its position on the Commission’s proposal. The parliamentary process is shepherded by MEP Therese Comodini Cachia (EPP, Malta). According to a preliminary timeline published by her, the process will be completed before next year’s summer break.
Wednesday’s hearing (recording) focussed on one of the most controversial issues of proposed Directive, the measures for filtering and blocking user uploaded content contained in article 13. These are supposed to address a so-called “value gap” caused by online platforms that allow users to share content online. The Commission has bought into the rightsholders narrative, although evidence why these measures are necessary is still lacking.
The wrong answer to online creativity: privatised censorship and filtering
As our friends at EDRi have pointed out in painstaking detail, such an obligation to monitor and filter is at odds with other EU laws and with jurisprudence from the Court of Justice of the EU, and would negatively impact the freedom of expression online.
During Wednesday’s hearing, BEUC (the European Consumer Organisation) presented these concerns and highlighted the fact that these measures are discussed in a context where internet users across Europe lack legal clarity with regards to what they can or cannot do with copyrighted content (see slide 7 of BEUC’s presentation).
It is absurd that the European Commission is proposing measures for filtering and censoring user-uploaded content based on criteria delivered by rightsholders while Europe is still lacking clear rules for non-commercial remixing and other transformative uses. The system will not only be used to censor the net, but will also further burden users with unclear copyright law.
Undermining the right to link
Unfortunately Wednesday’s hearing did not provide a forum to address such concerns. Instead it served as a reminder that there are plenty of stakeholders out there who think that the Commission’s proposal does not go far enough. An example of this was the final presentation of the day by CEPIC (which represents image libraries). CEPIC welcomed the Commission’s proposal but pointed out that it was insufficient as it did not change the copyright rules to make embedding of already published materials illegal.
Attempts by rightsholders to limit the ability to link freely are nothing new. CEPIC’s attempts to undermine the right to link are part of a much broader effort. Over the past few weeks Collective Management Organisations have been raising this issue in mass mails targeted at MEPs. If you want to tell MEPs that preserving the right to link is important to you, you can do so via this tool provided by Save the Link.
An uphill battle
The EU parliament is not the only EU institution discussing the Commission’s proposal. In parallel the Council has also started discussing the proposal. While the discussions in the Council take place behind closed doors, the French government has made it clear that it considers the Commission’s plans for dealing with the so-called “value gap” insufficient and that it would like to see much more draconian measures to be imposed. In an information note on the Reform of the European copyright framework from early November the French delegation notes (emphasis ours) :
Fair sharing of value between creators and intermediaries who publish protected works online on a massive scale represents, in particular, a vital issue. We feel that it would be worth consolidating and expanding the Commission’s interesting proposals on this matter by clarifying the status of these activities in copyright terms, particularly the right of communication to the public and adequate accountability for these intermediaries, in cooperation with right holders
In other words, the French would like to see online platforms stripped of their intermediary privilege and create a situation where sharing of content will always require the explicit permission of rightsholders. Such an outcome would dramatically limit the way Internet users can share and reuse content and give rightsholders unprecedented control over online expression.
Both the CEPIC position at the JURI hearing and the French note should serve as an important reminder that things can potentially get much worse than what is contained in the Commission’s proposal and that there is much work ahead when it comes to preserving the Internet as an open communication platform.