Another day, and another sudden development in the European Copyright reform. As DisCo readers may remember, we explained in a September blog post that many European Member States (including Germany) were questioning the compatibility of the EU copyright proposal from the EU Commission with the e-Commerce Directive, a legal cornerstone of the European digital sector.
Today, Politico Europe leaked the (lengthy, technical) Opinion from the Legal Service of the European Council, vindicating the concerns expressed by these Member States. Member States were particularly concerned that the Copyright proposal (Article 13 and recital 38) was an unspoken attempt to rewrite the rules of the e-Commerce Directive and to redefine the notion of “communication to the public” (fundamental to the relationship between hyperlinking and copyright) through the backdoor. On those counts, the opinion is a victory for Member States – the Legal Service has harsh words for the Commission’s approach.
The Legal Service was expected, at the request of many Member States, to provide clarity on a proposal that many experts still struggle with. The lengthy, technical document comes with the requisite non-committal disclaimers and caveats. And ultimately, the opinion concludes that the Member States need to decide what the proposal actually should mean before any conclusive opinion can be delivered.
However, in the diplomatic language of the Council lawyers, the opinion also takes a direct swipe at the Commission and points Member States back to the Commission for answers.