Copyright Reform: the End?
After years of discussions, twists and drama, the negotiations on the European copyright reform may be (finally) drawing close. Barring further developments during this week’s negotiations at the European Parliament and European Council, an agreement between the representatives of the European institutions might be concluded as early as 21 January 2019.
If an agreement is struck on 21 January, the European copyright reform will introduce a “press publishers’ right” (Article 11) and measures introducing content filtering on a large scale while also strongly undermining the limited liability regime of online platforms (Article 13).
Article 11 – A European Press Publishers’ Right
For years on Project DisCo, we’ve challenged the introduction of an European “press publishers’ right” (formerly known as “ancillary copyright”). Such a right is not supported by any compelling evidence, would undermine the free flow of information online and create additional layers of rights to navigate for researchers and educational institutions – as previously seen in Germany and Spain.
Unfortunately, the European Council and the European Parliament both decided last year that a “press publishers’ right” should be included in the European copyright reform. However, their respective approaches were different and the European institutions have been negotiating for a few months to try to find a way to reconcile them.
One of the last open issues is the protection of small excerpt of press articles (“snippets”). The Parliament voted in September to only exclude from the scope of this right “hyperlinks” and “individual words”, while the Council’s position excluded “insubstantial parts” (to be defined by each EU country, according to their size or originality).
It seems that the approach currently garnering support within the institution is to exclude from the scope of regulation only facts, mere hyperlinks, and insubstantial parts defined as “individual words and very short excerpts”. Anything of greater length appears to be subject to licensing. This is an extreme approach, in direct contradiction with essential limitations to copyright and Europe’s treaty commitments. (e.g., not protecting facts or information per se, mandatory exception for quotations, etc.).
Hyperlinks are the road signs of the Internet, providing context through title, excerpts of text and/or thumbnail images for users to assess where the link will take them to. Allowing only “individual words and very short excerpts” to be displayed without a licence would make snippets (and therefore hyperlinks) meaningless. In addition, it’s worth noting that 28 different national courts would have to define the meaning of “individual words and very short excerpts”, further fragmenting the Digital Single Market.
Article 13 – Content Filtering
Article 13, which introduces content filtering and undermines liability protection, remans a mess, as summarised by this twitter thread.
According to the current version of Article 13, and despite the warnings of dozens of experts, platforms within its scope will perform an act of communication to the public, making them liable for every piece of content uploaded by their users. This decision upends the limited liability regime of platforms, the legal foundation of the Internet in the EU.
As some negotiators have been willing to acknowledge that platforms could not negotiate licenses with millions of rightholders “for every possible kind of copyrighted content that users upload”, recent discussions have been focused on trying to preserve, through “mitigation measures”, a workable liability regime for platforms when no license has been obtained.
The list of mitigation measures considered covers making “best efforts” to obtain a license and to ensure the “unavailability of specific works” (i.e., filtering), to remove expeditiously “notified works” and make “best efforts to prevent their future uploads” (i.e., a “staydown obligation”). A carve-out for SMEs is also discussed.
Unfortunately, these suggested mitigation measures are merely the least of two evils. While ensuring that at least some open platforms would be able to continue operating in Europe, this reform would generate a sharp increase in the implementation of filtering technologies and completely undermine the e-Commerce Directive.
It’s also worth noting that this list of mitigation measures is not yet final and could be amended for the worse. At present, negotiators seem to have produced a dubious consensus among Internet and creative sector organizations: that the entire Article should be discarded.
What’s next? Once an agreement has been struck (potentially next week) between the European institution, a new vote at the Parliament.