Two weeks ago we highlighted the fact that six EU member states had asked questions to the Council legal service about the legality of Article 13 of the proposed Digital Single Market directive. Yesterday it emerged that the government of Germany also has serious concerns about Article 13 and asked its own set of questions to the Council legal service. As our friends at copybuzz.com point out, this move by Germany adds a lot of weight to the questions raised by Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands before the summer. While the questions asked by the German document more or less mirror the concerns of the other six member states, there are also some important differences.
A lot of the concerns raised by the six member states centered on the relationship between the Commission’s proposed Article 13, user rights granted under exceptions and limitations, and the rights enshrined in the EU fundamental rights charter. In contrast the intervention by the German government seems to be motivated by a different set of concerns. In the introductory paragraph of the document they write (emphasis ours):
We welcome the fact that the Commission has addressed the matter of how to fairly distribute the value created by internet platforms. We must ensure that creative individuals receive fair pay, also if their work is available on the internet. Concurrently, platforms must not be jeopardised in their function as a societal medium of communication. Moreover, it must be ensured that the competitiveness of European enterprises and the freedom of scientific communication are not impaired.
Based on this is seems clear that the German government is primarily worried about the potential negative impacts that Article 13 would have outside the narrow confines of the music industry. The German government is concerned that the Commission, driven by the the music industry’s desire to cripple the liability exceptions of the E-Commerce directive, will undermine the economic basis for much of Europe’s digital economy.
A threat to the digital economy and academic research
Similar to the six member states before it, the German government is not at all convinced that the Commission’s proposal will leave the legal principles established by the E-Commerce directive intact. From the German point of view this is especially worrisome as the liability exceptions apply to many platforms other than the video sharing and social media services targeted by the music industry. And while the music industry is without a doubt an important contributor to the EU economy, so are other sectors that rely on online platforms and the protections granted by the E-Commerce directive (see for example this excellent report by the Open Forum Europe and the Free Software Foundation Europe that highlights how Article 13 would create substantial burdens for collaborative software development in the EU).
In addition to the negative impacts on other economic sectors, the German government also expresses concerns about the potential impact of Article 13 on academic research—which increasingly relies on open platforms:
However, particularly in the field of academia, there will be platforms onto which researchers and scientists will upload their texts or data sets. The European Union itself is among those operating such platforms by its OpenAire. A constant monitoring and the resulting costs cannot be brought in line with the freedom of science.
Undermining the legal basis of open online platforms not only negatively affects the rights of users of these platforms, but threatens industries and economic sectors that have nothing to do with the music industry. In this light pushing through with Article 13 will create uncertainty for platforms and users, and is likely not in line with the existing EU legal framework.
The alternative: Harmonising Notice and Takedown
The ill-advised push for Article 13 is especially troublesome because there are other clear and less problematic alternatives. In line with what the Max Planck institute for Innovation and Competition proposed, the german Government points to a harmonization of notice and takedown provisions in the EU as a potential answer to the concerns of the music industry over illegitimate use of copyrighted content on online platforms:
A provision on notice and takedown having applicability throughout the European Union has the potential to likewise be an effective means of combating violations of rights. With regard to the freedom of information, this might be a gentler means.
By raising these important questions the German government is contributing to an increasing chorus of voices that make the case for deleting Article 13 (and the accompanying recitals) from the DSM directive and deal with the issues raised by unauthorized online use of content in a more appropriate forum.