Bad news in leaked EU Copyright Directive
Several documents have been leaked from the European Commission providing a clear picture of the proposed reforms to copyright that will be presented later in the year. The picture is quite negative as the proposals range from the timid to the openly regressive, such as the introduction of a new ancillary right for news publishers. Several key initiatives have been dropped, including changes to the current exceptions for freedom of panorama that allow taking the pictures of public art and buildings.
The documents leaked include the Impact Assessment on the Modernisation of EU Copyright Rules, prepared by EU officials; an official communication titled ‘Promoting a fair and efficient European copyright-based economy in the digital single market’ due to be published later this month; and finally the full text of the proposed new Directive on Copyright in the Single Market.
The new Directive will complement and not replace current legislation such as the Infosoc Directive, although there are some minor technical modifications. Existing directives will not be reopened for discussion, thus limiting the possibilities for reform in key areas such as Digital Rights Management. The directive applies to the European Economic Area (EEA) and will probably be relevant to the UK whatever shape Brexit eventually takes.
These leaks make the past two years of pre legislative discussions about comprehensive copyright reform feel like a waste of everyone’s time, except of course for a few industry lobbyists. The EU is about to throw away the first chance in over a decade to adapt copyright to the digital world, instead choosing classic protectionism for incumbent industries. These measures will not promote the creation of a vibrant digital industry in Europe capable of standing up to Silicon Valley – as EU policymakers want.
Below is a summary of the main contents of the leaked Directive. There are other initiatives in the wider package, including: a Regulation for online broadcasting, implementation of the Marrakesh treaty on accessibility for the visually impaired, a broad package on copyright enforcement and more provisions to promote European works.
The contents of the Directive are a mix of initiatives that include some mandatory limited exceptions for culture and education and measures to help improve remunerations for creators, but in the main are openly about supporting right holders and European industry.
Protectionist measures
Publishers ancillary right
This is the most controversial reform is the creation of a completely new intellectual property right for news publishers which lasts 20 years and will add a new layer of complexity to Internet regulation. The new right has the same scope as rights of reproduction and making available and it’s covered by the same exceptions, including criticism or review. The EU is open in aiming to support the financial sustainability of news publishers, and the right does not cover scientific or academic publishers. We are not completely clear on the situation of blogs, but the right is meant to cover only publications by a “service provider”.
This right is meant to stop internet news aggregators to simply copy a portion of the news article and stop revenues flowing to the original site. Similar initiatives in Germany and Spain had a disastrous effect on media access, but we will need more time to fully understand how bad this one is. The first analyses are extremely negative as the new right seems even less constrained than previous initiatives.
User uploaded content: YouTube Law
Another major concession to industry aiming to address the “value gap” created by the disparity between the number of people watching content in platforms – basically YouTube – and the revenues received. The Directive forces relevant online platforms to seek licenses from rightsholders. While there may a case for Google to share some of its profits with rightsholders it is unclear that copyright law is the best way to do it. This law will extend beyond YouTube with unpredictable effects on Internet activities, as lawyers cotton on to the new powers given to industry.
This new power goes to the heart of Internet regulation: the (lack of) liability of intermediaries that enables content to be hosted and linked around, expressed in the E-commerce Directive. In principle the new power covers services that go beyond providing “mere physical facilities” and perform and “act of communication to the public” by taking an active role in curating or promoting content, but this is not always clear cut.
The Directive does not include an obligation to monitor preemptively – which would contravene other laws – but it forces the implementation of technological protection measures to protect works, such as Google’s Content-ID – with transparency obligations towards rightsholders.
Fair remuneration for authors and performers
There are some positive measures to protect creators that include transparency over online media sales, powers to renegotiate contracts and alternative dispute resolution mechanisms. Overall they seem positive albeit a bit weak, when compared with the sledgehammers given to news publishers and the music industry.
New mandatory exceptions
These exceptions are positive but in all cases limited when compared to the initial demands of libraries, educators and cultural institutions. They do not include many of the more far fetching reforms proposed by civil society and even the European Parliament.
The call for a mandatory exception for “freedom of panorama” campaigned for by many civil society groups including ORG fell on deaf ears. The Commission has simply stated in their documents that the status quo works fine, while politely asking all countries to implement the exception.
Text and Data Mining exception
This exception allows the making of copies to perform analysis for scientific research by non-profit or public interest organisations. There is no compensation for rights holders and an explicit ban on contractual clauses overriding the exception. Technical measures to restrict access or copying are allowed but should not affect the exception.
This is a positive move, although many research organisations and libraries had been asking for a broader scope as they feared that a lot of important research may be excluded.
Online Teaching exception The rationale for this exception is the lack of clarity on whether existing exceptions in the Infosoc and Database Directive apply to online education, particularly cross border access . The exception covers only “educational establishments”, which must control access to the resources, and will likely exclude many online educational initiatives. The exception allows for licensing schemes to take precedence over the exception and this could be used to weaken the provisions.
Digital Preservation
Libraries, archives and similar cultural heritage institutions will be allowed to make necessary copies of works for preservation, but only of works in their permanent collections. The exception is only for internal copies and not for online libraries.
Supporting the digital market
A couple of fairly minor initiatives that are positive but of limited impact in the context of the once-in-twenty-years reform of copyright.
Out-of-commerce works
Libraries have been lobbying for a long time to be allowed to engage in collective licensing deals to digitise and distribute out-of-commerce works. They see this as both an extension of their mission and an opportunity to generate funds, although in principle this is framed as non-commercial cost recovery of the costs of mass digitisation. The exception only applies to works first published in the EU. This is not a full free copying exception, but the option to enter extended collective licensing deals without the need to get approval from every author. There is a six month compulsory notice in case authors are around and object.
Video on demand
The directive forces member states to create a voluntary “negotiation mechanism” with the support of and impartial body to help parties license work for Video on demand (VoD) services.
In summary, a disappointing culmination of a two year discussion that started with high hopes of seeing Europe take bold moves to really modernise copyright. The legislative process starts now, however, and while the UK is in the EU, ORG will continue to try to influence the shape of these laws as they go through the European Parliament. We must also remember that this is all based on leaked documents and the European Commission may still make some changes.