A report for a committee of the European Parliament has pushed back against proposed legislation that would force the filtering of user-uploaded online content and restrict the use of press content online.
The EU is introducing some major changes to copyright legislation under a programme to improve the European Digital Single Market. This reform has reached an important milestone with the publication of a long-awaited report on a proposed new Directive. These changes will affect the UK after it leaves the EU, although the exact impact will depend on the level of access to the single market achieved after the negotiations between the UK government and the EU.
The proposed Directive on Copyright in the Digital Single Market contains measures that could have a negative impact on citizens. They include restricting the reuse of press content online and forcing platforms to censor user uploaded content. These proposed measures seem designed to protect incumbent European media conglomerates from Silicon Valley but will do little to promote a vibrant European digital sector.
The final report on the Directive for the Legal Affairs (JURI) Committee by Rapporteur MEP Therese Comodini Cachia’s (EPP, Malta) will provide the main point of scrutiny by the European Parliament, setting the lines for the final plenary vote. The draft report will now be open for amendments by MEPs from the committee until 30 March.
MEP Comodini Cachia should be commended for taking input from a variety of organisations - Including ORG through C4C - and not only the industry lobbies that hold such a disproportionate hold on policymaking around intellectual property.
Possibly due to these diverse perspectives, her report marks a shift from the latest stages in the debate towards a more balanced approach that considers both the interests of copyright owners but also the rights of users. We still think that Ms Comodini could have gone further in certain areas.
Removal of the proposed press publishers’ right
The report proposes to delete the Commission’s proposal for a brand new copyright-like right for press publishers introduced by the Commission to widespread dismay from copyrights experts, who have made clear that the introduction of a new right is unnecessary and would create a whole array of new problems.
The report rejects the argument that the Internet is intrinsically damaging to the press, with news portals and aggregators actually allowing readers to find more sources of news. This is evidenced by the experience of Spain, where a compulsory licence on news aggregators led Google to pull out its news service for that country, as they do not make any profit from it. This led to a drop in traffic to small publications.
There is broad agreement though that news publishers face serious challenges from online platforms. Some publishers have demanded a new right because they claim that they simply cannot enforce the existing copyright in their publications when news articles are copied by third parties, due to complex contractual relations with the authors of the pieces.
Ms Comodini proposes an alternative to a new right by giving publishers more powers to enforce existing copyright, which should provide enough protection. Her Amendment 52 gives press publishers legal standing to represent the authors of the works contained in their publications, being able to sue in their own name to defend the rights of such authors for the digital use of their press publications.
This is a very sensible proposal that should be supported by MEPs.
Improvements to filtering of user content by online platforms
The proposals would amend Article 13 of the draft Directive, which sets out obligations for online platforms to monitor and filter user content. These obligations would now be restricted to ensuring that agreements are concluded with rightsholders for the use of their works, removing references to “prevent the availability on their services of works or other subject-matter identified by rightsholders”.
The draft Directive makes platforms primarily responsible for preemptively checking that user uploaded content does not breach copyright. The report changes this, with rightsholders being responsible for identifying any misuse of their works, rather than prescribing “content recognition technologies” to be applied by online platforms. These changes go a long way to soften some of the worst aspects of the Draft DSM Directive by removing automated censorship.
The report also makes clear that copyright exceptions must be respected in any measures implemented and users shall have access to a court to “assert their right of use” (Am 60). This is very important when it comes to parody or criticism.
There are, however, some potential problems. We share concerns raised by the Copyright 4 Creativity (C4C) group that certain amendments could drag a broader array of online providers under these measures.
The original proposals were meant to cover services that both stored user uploaded files and made these available online, squarely aimed at YouTube. Removing the references to “storage” when defining the type of online services that would be in scope for these measures could widen the scope to many more online services.
Despite the improvements introduced by Ms Comodini, we recommend that MEPs vote for amendments that simply delete these provisions rather than trying to minimise them, as we cannot predict how they will be used, or misused, in the future.
A handful of US digital companies - Google, Facebook, etc. - have cornered the market and are at war with traditional media from news to music. Internet users are caught in the middle of this war when they upload and share the things they like.
Proposing that intellectual property agreements must be in place for all platforms actively making available user-uploaded content will create massive barriers to entry for new projects and damage the interactive nature that has characterised the internet in recent times. The explosion of free expression by ordinary citizens is something that should be celebrated and protected by governments, not traded in backroom deals between giant industry groups.