EU copyright reform grinds into trilogue negotiations

Oordeel van Salomo
Secret judgment of EU copyright reform
Licentie

Last month the notorious EU Parliament vote approved almost all of the worst measures of the proposed Directive on Copyright in the Digital Single Market. It was a significant setback for user rights and the open internet.

Recap: 12th September Parliament vote

The Parliament voted in favor of Article 13, which even though it didn’t mention explicitly, would in practice force online platforms that host significant amounts of user-uploaded works to filter all content for copyrighted materials and prevent the upload of those works unless a license has been agreed to. If the platforms don’t do this, they would be liable for copyright infringements of their users.

They approved Article 11, which gifts a new copyright-like right to press publishers that will allow them to control how we access and reference press publications and news stories online.

The text and data mining provisions of Article 3 pretty much stayed the same, with a mandatory exception carrying through, but only one which can be taken advantage of by not-for-profit research organisations, and only for the more limited scope of scientific research. An optional addendum would permit an expanded exception applicable to all, but only if the rights holders in the underlying works don’t object to it, or arrange their own licensing requirements.

Article 4, the copyright exception for education applying to digital and cross-border teaching activities, while being seriously improved over the Commission version, still contains the fatal flaw that the mandatory exception can be essentially ignored if there is appropriately licensed content made available in a Member State.

To add insult to injury, the Parliament doubled down on their rights giveaway bonanza, approving Article 12a to grant sports events organizers to prohibit anyone from sharing photos or other recordings of sports events. And the new Article 13b requires that image search engines to obtain licenses for even the smallest preview images that they display as search results.

We did note that there were some important wins carried in the vote. For example, there were positive provisions passed to allow cultural heritage institutions to provide better access to-out-of commerce works. Also included was some protection for the public domain in Article 5 which states, “Member States shall ensure that any material resulting from an act of reproduction of material in the public domain shall not be subject to copyright or related rights, provided that such reproduction is a faithful reproduction for purposes of preservation of the original material.”

Next step has begun: trilogue negotiations

After the plenary vote in the Parliament on 12th September, the Directive moves into trilogue negotiations consisting of the Commission, Parliament, and Council of the European Union (the EU Member State governments). The first official meeting of the trilogue was held on 2 October. Even though these are closed door meetings, MEP Julia Reda has promised to share trilogue documents on her website, including the comparison positions of the players and possible compromises being floated during the negotiations.

The trilogue bodies will work to reconcile their versions of the directive text, and a final vote will take place in the European Parliament in early 2019.

The public is facing an uphill battle if it wishes for the copyright reform to improve much in the trilogues. Why? Because Member States have already adopted a position that in many respects is even worse than what was agreed to by the Parliament on 12th September. But a significant amount of time has passed since the Committee of Permanent representatives of the Council adopted its negotiating mandate. So advocates are reaching out to their government representatives in the Council to offer ideas to fix some of the most dangerous aspects of the copyright directive.

Even though the Parliament vote was another blow to realising a progressive copyright reform in the EU, it’s not over till it’s over. It’s up to all of us to continue to organize, advocate, and fight for our positions to improve these copyright rules to benefit creators, users, and the public interest.  

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