A “compromise” that fails to deliver – our overall assessment of the directive remains negative

Overall DSM directive assessment: bad for the peopleLicentie

On Wednesday the Council formally approved the trilogue compromise text of the DSM directive with only 5 Member States voting against the compromise. In a joint statement the Netherlands, Luxembourg, Finland, Italy and Poland sharply criticised the compromise:

We believe that the Directive in its current form is a step back for the Digital Single Market rather than a step forward.

Most notably we regret that the Directive does not strike the right balance between the protection of right holders and the interests of EU citizens and companies. It therefore risks to hinder innovation rather than promote it and to have a negative impact the competitiveness of the European Digital Single Market.

Furthermore, we feel that the Directive lacks legal clarity, will lead to legal uncertainty for many stakeholders concerned and may encroach upon EU citizens’ rights.

These criticisms are very much in line with our own assessment of the directive and it is unfortunate that the rest of the Member States have chosen to ignore them. After this week’s approval by the Member States it is now up to the European Parliament to prevent the directive (or its most harmful element, Article 13) from being passed into law. There is no date for the final plenary vote yet, but the final showdown is widely expected to take place anytime between mid-March and mid-April.

Internet is should be for the people

In the light of this we have now updated our overall analysis of the directive (which we had first published in January) to reflect the final compromise text. The final trilogue negotiations have resulted in changes to the text related to the Text and Data mining exception, the publishers right, the fair remuneration right and — most notably — Article 13. By and large the changes to the text have been minor and in line with our expectations, and as a result our overall assessment of the directive as a whole remains negative. The finals text will do a lot of harm to internet users and needs to be blocked from becoming law.

Last minute surprise: Harmonisation of users’ rights

There is however one area where the trilogue negotiations have resulted in a last minute turn for the better. In a somewhat unexpected move the negotiators agreed on language in Article 13 that would make two of the existing (but currently optional) exceptions of the InfoSoc directive mandatory. If adopted paragraph 5 of Article 13 would require those member states who currently do not have the quotation and parody exceptions implemented to do so (at least with regards to uses that fall within the scope of Article 13).

The new language will do nothing to achieve its stated goal (namely ensure that users will be able to continue to share memes and other remixes via the platforms that fall under Article 13) but it will be another small step in the direction of a EU copyright system where users have the same rights in all member states. It is somewhat ironic that the harmonisation of existing exceptions that should have have been the main element of the reform package (there cannot be a Digital Single Market unless users have the same rights independent of the Member State they are in) has only slipped into the text at the very last minute and in the shadows of the controversy surrounding the upload filters. This is clearly an improvement of the legal situation of EU internet users and as a result we have changed our assessment of the right to remix issue from -2 to +1.

No amount of wishful thinking can ensure that upload filters respect user rights

Unfortunately this does nothing to improve Article 13. As we have argued again and again, the upload filters that platforms will be forced to implement under Article 13 are incapable of distinguishing between uses of a work that are infringing and those that are legal because they are covered by a copyright exception. Ensuring that these two exceptions are in place in all member states does not change the fact that the filters will not be able to recognise that a use is covered by them. Regardless of how often the legislator writes it into the text of the directive (at this moment both art 13(5) and 13(8) contain a requirement that the “measures” should not result in the blocking of works that are used under an exception) upload filters will severely limit users’ rights. Given this we have maintained our -3 score of the upload filters issue issue.

Our overall assessment remains unchanged: The proposed Directive is bad, and will not make the internet work for people. The final “compromise” text has done nothing to accommodate the concerns we and others have raised for the past 30 months. As long as Article 13 remains part of the package, the only sensible way forward it to make sure that Directive will be rejected by the European Parliament.