Now that the Bulgarian Council presidency seems to have decided that it is time to wrap up the discussions on the DSM proposal and push for a political decision on a negotiation mandate, people are getting nervous. Late last week a whole assortment of organisations representing rights holders from the AV industry (organised in the creativity works! coalition) have sent a letter to Member State ministers and representatives, outlining their concerns with the latest Bulgarian compromise text. The document mainly focuses on Article 13, and what they have to say about that article is rather interesting (and surprisingly in line with positions that we have been arguing all along).
The overriding concern expressed by the rightsholders in their letter is that some of the more recent changes introduced in the council would turn Article 13 from a magic weapon against a few online platforms into a mechanism that threatens to further empower these very platforms in a way that does not benefit rights holders. In response to this, Creativity Works! (CW!) argues for further strengthening some of the most problematic aspects of Article 13.
We have long argued that Article 13 seems to be designed to benefit the big dominant online platforms, as it will entrench their market position. For smaller companies compliance with the filtering obligations will be difficult and costly while the main targets of Article 13 already have filtering systems in place (such as YouTube’s Content ID), and it is a welcome sign to see rights holders waking up to this reality.
For us it has been clear from the start that Article 13 will not achieve its stated goals. Instead the filtering obligations will cause tremendous harm to the freedom of expression and to open platforms that operate in fields that have nothing to do with the distribution of entertainment products. For this reason we think that the only responsible way to deal with Article 13 is to delete it and start over with a discussion about how we can best ensure that creators can be fairly compensated for their work. (Note that in this discussion most of the members of CW! are likely to be part of the problem rather than the solution as CW! has very little representation from actual creators.)
And while CW! is not joining us in our call to delete Article 13, their letter does illustrate our argument that adjusting general concepts of copyright law in order to address the concerns of specific groups of stakeholders is utterly irresponsible in the light of the big (and often unintended) consequences such an intervention can have.
Case in point: the re-definition of right of communication to the public. We and others critical of Article 13 have long argued that Article 13 would expand the right of communication to the public. Within the Commission’s proposal this aspect of Article 13 was hidden away in a recital, but over the successive drafts it has become more explicit. This seems to have led to the sudden realisation by rights holders that such a re-definition of this important right can also negatively affect them. In their letter they wrote on the last Bulgarian compromise proposal:
It would limit the scope of the right of communication to the public by incompletely applying Court of Justice of the European Union (CJEU) case law and setting into stone in Article 13 only certain criteria developed by the Court. This approach would roll-back the CJEU’s case law, which has repeatedly confirmed that a broad interpretation of the right of communication to the public (CTTP) is necessary to achieve the main objective of the Copyright Directive, which is to establish a high level of protection for authors and rights holders. CW! recalls that the exclusive right of communication to the public, including the making available right, as enshrined in EU law (and further clarified by the Court), has emerged as the bedrock for the financing, licencing and protection of content, as well as its ultimate delivery to consumers in the online environment. The Court has also emphasised, in its recent judgments, that in order to determine whether there has been a CTTP, several complementary criteria must be taken into account, which are not autonomous, but are interdependent. Any proposals that entail a selective application of the Court’s jurisprudence, or that imply a narrowing of the scope of the right of CTTP, would be contrary to the protection required by current EU and international law.
While we do not agree that the current draft would limit the scope of the CTTP right, this passage illustrates the dangers of carelessly fiddling around with core legal concepts that underpin the EU copyright framework. In this context it is important to recall that the mechanism proposed in Article 13 has not been part of the public consultation that preceded the proposal, and that its modifications of core legal concepts have not been properly analysed by the EU’s own impact assessment. In other words, Article 13 is the product of a sloppy, ideologically-driven way of law making and should be sent back to the drawing table for this reason alone.
The rightsholders have been in for a similar surprise with regard to another tiny veiled objective of the Commission’s proposal – the attempt to strip open online platforms of their liability limitations that they enjoy under the e-commerce proposal:
It would not fill a gap for rights holders, but rather create additional privileges for certain big content sharing platforms. Article 13(4) would create a new special limited liability regime for online content sharing service providers (“OCSSP”) who communicate to the public as it would exempt an OCSSP from liability when it has made “best efforts to prevent the availability of specific unauthorised work or other subject matter for which rightsholders have provided it with information.” This provision would be another clear step backwards for rights holders and would favour certain online platforms. Under the current law, these platforms are already required to take measures with respect to specifically identified and notified works – not only to make “best efforts.” If they do not do so, they do not qualify for the liability privilege under Article 14 of the E-Commerce Directive.
Not surprisingly, this is another element of the proposal that has not been properly addressed in the run up to the proposal or in the impact assessment. In this case we can even agree with the assessment put forward in the CW! letter. This proposal is bad and will further entrench the dominant position of the established online platforms. This will be negative for creators but even more so for users who will be confronted with upload filters that censor their speech and creative expression without actually helping other creators of original content.
While it seems unlikely that the rightsholders will abandon the path that they have embarked on and join us to demand the deletion of Article 13, it is not too late yet. The fact that those who have pushed these dangerous ideas forward are now suddenly terrified by the monster that they have created should open the eyes of lawmakers and anyone who is interested in a functional EU copyright framework that rewards creativity and encourages innovation. There is still time to delete Article 13 and start a proper discussion about how Europe can best ensure that creative work is fairly compensated in the online environment. As we have argued before, the outcome of such a discussion may very well be that there are better ways to achieve this objective than carelessly abandoning core principles of a copyright system that needs to serve the interests of many more sectors than just the entertainment industry.