This is a slightly edited version of an analysis that was first published by Europeana on the Europeana Pro website
More than a year after the European Commission published its proposal for a Directive on Copyright in the Digital Single Market (DSM directive), the proposal continues to be discussed both in the Council and in the European Parliament. While the discussions in the European Parliament have recently slowed down to a crawl (the vote in the Legal Affairs committee is not expected before January), the discussions between the Member States in the Council are picking up steam: earlier this week, the Estonian Council presidency’s consolidated compromise proposal was made public.
The compromise proposal contains an entire new chapter (chapter 1a – Measures to facilitate collective licensing’) that contains an a new article (art 9a – ’Collective licensing with an extended effect’). To anyone familiar with the Commission’s proposal (and the critical reception by cultural heritage institutions) this addition will appear somewhat odd as the Commission’s original proposal already relied on ’collective licensing with an extended effect’ as a mechanism that would allow cultural heritage Institutions to make out of commerce works (OOCW) from their collections available online.
So what exactly is going on here? Articles 7-9 of the Commission’s proposal are aimed at enabling the cross border use of out of commerce works. This would allow cultural heritage institutions to make such works from their collections available online so that they can be accessed from everywhere within the EU. While we think that relying on extended collective licensing alone will not be sufficient to achieve this objective for all sectors and all types of work, we are happy with the ambition to solve this problem on an EU wide basis.
A legal basis for Extended Collective Licensing
By contrast, the newly proposed article 9a focusses on (existing) national extended collective licensing arrangements and would not have any cross border effects. Instead, it introduces provisions into the EU legal framework that would remove the legal uncertainty that currently surrounds the extended collective licensing arrangements that exist in a number of (mainly nordic) EU Member States:
A functioning copyright framework that works for all parties requires the availability of proportionate, legal mechanisms for the licensing of works. Systems such as extended collective licensing or presumptions of representation are a well-established practice in several Member States and can provide such solutions, […] Given the increasing importance of the ability to offer flexible licensing solutions in the digital age, and the increasing use of such schemes in Member States, it is beneficial to further clarify in Union law the status of licensing mechanisms allowing collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all rightholders have authorised the organisation to do so (Recital 28a + 29c of the Estonian Compromise proposal)
Lately we have written so much about ourselves, human rights organisations, academics (1|2) and member states (1|2) criticising the upload filters proposed in article 13 of the proposed DSM directive that one could almost forget that there are indeed powerful forces who are pushing for these filters to become a reality.
A new set of documents leaked by Statewatch presents an (un)welcome reminder of of the fact that the idea of upload filters has powerful supporters outside of the music industry and that they wield considerable influence on the discussions in the council. The set of documents consists of a document containing “amendments to recitals 37, 38, 39 and Article 13” proposed by the French, Spanish and Portuguese delegations (dating from 2 october) and a document by the Estonian Council Presidency containing the questions raised to the Member States during 17-18 October meeting of the Council Working Party on Intellectual Property, which echoes the tone set by the amendments proposed by the three member states.
The amendments proposed by France, Spain and Portugal offer the clearest view yet on what the proponents of article 13 want to achieve. In their eyes article 13 is not about vague and ill defined “measures to ensure the functioning of agreements concluded” between rightsholders and online platforms but about creating a complete change of the legal status of open online platforms. The amendments proposed make an attempt to (a) re-define the activities of online platforms as communication to the public undertaken by those platforms and to (b) remove online platforms that allow uploads by their users from the protections afforded to them by the e-commerce directive.
Legal uncertainty exists as regards the conditions under which the provision of access by information society service providers allowing users to upload content can be considered as an act of communication to the public. This affects rightholders’ possibilities to determine whether, and under which conditions, their works and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it. The present directive clarifies the conditions under which such information society service providers can be considered to perform an act of communication to the public and therefore do not fall in the scope of Article 14 of the Directive 2000/31/EC. (recital 37, additions by FR/ES/PT in bold)
While the proposed Copyright in the Digital Single Market directive is seen by most stakeholders as an attempt to adapt the copyright rules to the evolving realities of the digital economy, the French (and their Portuguese and Spanish supporters) are clearly of the opinion that it should be the other way around: according to them the realities of the digital world must be adapted to the principles of copyright orthodoxy (i.e to a legal constructs established in the late 19th century). Continue reading
The Council of the European Union, currently led by the Estonian Presidency, has published an updated compromise proposal regarding Articles 2 to 9 of the Commission’s draft directive on copyright. The Estonian proposal will be discussed among the Member States next week at the meeting of the Copyright working party.
The minor tweaks to the exception for text and data mining offered in this recent draft—as well as the earlier changes suggested in the Maltese compromise proposal from 8 May —are inadequate to supporting research and innovation in the European digital single market.
Where the Commission’s original plan only permits “research organisations” to take advantage of the exception, the new Council’s compromise proposal would extend the beneficiaries to include “cultural heritage institutions.” At first glance this addition would seem welcome because it expands (albeit narrowly) to an additional beneficiary group. But this meager edit ignores the larger concern that citizens and private sector organisations still will be excluded from the benefits of the exception. As we’ve argued, this is clearly not aligned with the goals of the reform to promote activity in the digital single market.
In addition, the Council compromise proposals do not change the problematic limitation that TDM may only be carried out strictly for “purposes of scientific research.” We’ve criticized the Commission’s short-sighted approach in only permitting TDM to apply to scientific research. Such a restraint will surely decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”. Continue reading
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). Continue reading
Hot on the heels of last week’s leak of a (rather depressing) Estonian council compromise proposal that contained two bad proposals for the upload filter comes another leak of a council document. Apparently not all EU Member States are convinced that the Commission’s plans to require online platforms to filter all user uploads is such a good idea! Statewatch has just published a document containing written questions from the governments of Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands to the council legal service regarding article 13 and recital 38.
These questions clearly show that these Member States have serious doubts about the Commission’s repeated assurances that the proposed censorship filters would not affect users’ fundamental rights, do not change the liability exemption of the e-commerce directive, do not constitute a general monitoring obligation and do not change the definition of what it means to make copyrighted works available online.
All of these questions may sound like technical details but they are not. Instead they are at the heart of the discussion about article 13 of the commission’s proposal. Since the commission presented the proposal, a broad coalition of civil society, technology companies and academics has pointed out the problematic relationship between the commission’s proposal and fundamental rights and the principles established by the e-commerce directive.
Member States have serious doubts about legality of upload filters
The music industry organisations are the driving force behind the attempt to censor user uploads and regain control over the ability of millions of online creators to express themselves online. Together with the Commission they have flat out denied that the proposed in article 13 and recital 38 would change existing EU law. The fact that the six member states have formally asked the legal service of the Council (which is independent of the Commission) shows that they are not buying into this narrative. Continue reading
Summer is definitely over in Brussels and in member states – everyone seems to be back to work, which means in our case back to the copyright discussion. Yesterday Statewatch published a first compromise proposal by the Estonian Presidency. The document refers only to parts of the Commission’s draft directive, namely Articles 1, 2, and 10 to 16. From the very beginning we have been involved in the discussions on ancillary copyright for press publishers (Art. 11) and the upload filter (Art. 13). On both of these issues the Estonian proposal contains two different approaches, each a fact which further highlights how divisive these provisions are among the member states on article 11. One of the versions somewhat improves the Commission’s proposal while the other one makes it much worse. On article 13 both versions would make the Commission’s already terrible proposal even worse.
Ancillary copyright for press publishers – to be or not to be?
On the issue of new rights for press publishers the Estonian compromise proposal does not really present a compromise. The two versions mark different sides of the spectrum. On the one hand a version that would enact a massive expansion of the rights of publishers that goes well beyond the Commission’s proposal that dealt with rights in digital uses of press publication only. On the other hand, we have a version that does not create new rights while still giving publishers tools to act against infringement.
The first option (which can probably be attributed to France) expands the original bad European Commission’s proposal if it comes to the scope of the ancillary copyright from digital publications to publications published in any media, including on paper (in the proposal the article would also apply to videos and photos). What is even worse, hyperlinking is explicitly included in the scope, as long as such links constitute a communication to the public (in the absence of clear guidance this would open a whole new can of worms). This version would be a clear win for big publishers, and a major restraint for free flaw of information online. Continue reading