Yesterday, Catherine Stihler, the Rapporteur for the Internal market Committee of the European Parliament (IMCO) published her draft opinion on the proposed Copyright in the Digital Single Market Directive. As with the draft opinion of the CULT committee which we have extensively discussed here, here and here the IMCO draft makes it clear that the European Commission’s proposal is seriously flawed and requires substantial changes.
Catherine Stihler’s opinion contains proposals for amendments that address many of the issues that we have identified with the proposal, and on all of them she makes suggestions that move into the right direction (which includes proposal for a total of five new mandatory exceptions).
R.I.P. press publishers right
The ill-considered proposal to introduce a new neighbouring right for press publishers right is met with the only sensible answer: deletion of the relevant article and recitals. She points out, in line with what we have argued for, that the protection sought by publishers can be achieved with much less invasive means than the reaction of a new right:
Simple changes made to Article 5 of the Enforcement Directive 2004/48/EC, making it also applicable to press publishers, will provide the necessary and appropriate means to solve this matter.
Together with indications that the rapporteur for the JURI committee is also not convinced that press publishers need such a right, this starts looking like the end for the short sighted idea of curing the problems of the press sector with additional rights.
No upload filtering requirement for online platforms
While Stihler’s opinion is less rigorous on the upload filtering provisions contained in Article 13 (which we would also like to see deleted), her approach to the mess created by article 13 covers all the right bases. Her amendments remove all references to filtering measures and “effective content recognition technologies” and make it clear that any new obligations do not contradict the E-Commerce Directive:
Regarding Article 13 (and corresponding recitals 37, 38 and 39) the Rapporteur believes that the current wording is incompatible with the limited liability regime provided for in Directive 2000/31/EC (Electronic Commerce Directive), a piece of legislation that has proven to be enormously beneficial for the internal market in the digital sphere.
Through her amendements she makes it explicit that the provisions of the new directive must be compatible with articles 14 (liability) and 15 (monitoring) of the E-Commerce Directive. She also introduces a requirement that users’ fundamental rights should be taken into account by any agreements conducted between rightsholders and platform operators. As a result of all of these interventions the overall purpose of article 13 becomes even more muddied. We agree with the leading copyright academics who in their recent open letter concluded that
Article 13 needs radical reform that may not be achievable through amendments within its current structure. We would advise removing the Article from the Proposed Directive, and focusing attention on improving the procedure for “notice and takedown”’.
Stihler proposes after Joulaud a new mandatory exception for User Generated Content that we welcome, as it seems to be modelled after the exception that we had proposed here.
More breathing room for the cultural heritage sector
Another area where Stihler’s opinion shines is where she deals with the issues affecting cultural heritage institutions. A longtime supporter of libraries and other cultural heritage institutions, Stihler broadens the article 5 exception’s purpose from reproducing for preservation to all purposes related to the public interest missions of cultural heritage institutions.
Her new mandatory exceptions would finally allow libraries, museums and archives to fully benefit from the technological possibilities created by the digitisation of their collections:
A new exception on document delivery by cultural heritage institutions or educational establishments and another on access for the purposes of research or private study on the premises of cultural heritage institutions or educational establishments are introduced with this objective. Furthermore, an exception on public lending of literary works is also introduced with the objective of ensuring that all citizens of the European Union have access to a full selection of books and other resources.
Finally, Stihler proposes important improvements to the Commission’s proposals aimed at increasing access to out of commerce works. In reaction to demands by cultural heritage institutions, she adds an exception that will kick in situations where the Commission’s extended collective licensing approach cannot work.
Progress on text & data mining and education
Stihler’s opinion also contains amendments that improve some of the problematic elements found in the exceptions proposed by the Commission for text and data mining (TDM) and digital and cross-border educational uses. She expands the scope of beneficiaries of the TDM exception to “any individual or entity, public or private, with lawful access” and removes the limitation that the mining must be undertaken “for the purpose of scientific research”. Both of these moves would provide for a wider and less troublesome future for TDM in Europe.
With regard to digital educational uses Stihler seems to have embraced our arguments that the exception should not be limited to formal educational uses or digital uses only:
Also, in the field of the use of works and other subject matter in teaching activities (Article 4), the Rapporteur believes that the exception should benefit not only all formal educational establishments in primary, secondary, vocational and higher education, but also other organisations such as libraries and other cultural heritage institutions, providing non-formal or informal education. The Rapporteur believes that the best solution is to have a single and mandatory exception for all types of teaching, both digital and non-digital, formal and informal.
Although the general intent is laudable, a closer analysis of the proposed amendments reveals that the draft opinion needs some improvements, such as fixing the continued problematic inclusion of licenses in the education exception. (We will address these issues in a more detailed follow-up post).
All in all, not only does the draft IMCO opinion send a very strong signal that the Commission’s proposal needs to be improved substantially, but it also introduces solutions for almost all of the shortcomings. Being focussed on consumers’ rights, the IMCO committee has traditionally been an important balance in the discussions about copyright, and this first intervention in the discussion about the proposed DSM Directive continues this tradition.