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EU Copyright Directive: The Final Countdown

· March 21, 2019

At the end of January, DisCo published a post titled “Copyright Reform: the End?” stating that a final compromise between the European institutions on the copyright reform was near. A deal was indeed reached some time later in February on the provisions described, with a new carve-out for start-ups (and not SMEs) in its now (in)famous Article 13.

This carve-out provides that start-ups would not have to implement filtering mechanisms (but only do their “best efforts” to obtain an authorisation from rightsholders) if their “services have been available to the public in the Union for less than three years and which have an annual turnover below EUR 10 million”. However, if “the average number of monthly unique visitors of these service providers exceeds 5 million”, these start-ups would have to “demonstrate that they have made their best efforts to prevent further uploads of the notified works”. In other words, they would have to comply with a stay down obligation, requiring the implementation of filtering mechanisms.

This carve-out has been strongly condemned by start-up organisations. Lenard Koschwitz, senior director at Allied for Startups said that “we’ve heard many grand plans about making Europe a scaleup continent, not just one for startups younger than 3 years. This directive kneecaps startups in Europe and this reform will be another reason for less investment and European entrepreneurs having to work harder to compete globally”. Allied for Startups also published an interesting reality check on how Article 13 would impact its members.

With a deal agreed upon, four procedural steps remained: an endorsement by the Member States’ deputy ambassadors in Brussels (obtained 20 February), a vote from the Parliament’s Legal Affairs Committee (on 26 February), a vote from all 750 Members of the European Parliament (planned for 26 March) and a final endorsement by Member States’ ministers (date to be determined).

Over the past few weeks, the focus has been on the European Parliament and the plenary vote of 26 March. Civil society campaigns opposing the reform have been launched and demonstrations have taken place in Germany – forcing the German conservative party (which supported the reform in Parliament) to state that filtering mechanisms would not be required in the German transposition of the Directive. Since then, experts have explained that this position did not make any sense, as the copyright Directive’s aim is to harmonise copyright across the EU (see here for a Twitter thread in German from the German Consumer Organisation VZBV).

In the meantime, the European Parliament promoted on social media a video on the copyright reform, which included footage from a pro-copyright reform lobbying campaign (in addition to some questionable arguments on the meaning of the Directive). This video was apparently produced by Agence France Presse (AFP) – likely in the context of a framework contract. However, it’s worth noting that AFP has also lobbied the European institutions in favour of the reform. All of that without mentioning the European Commission’s post on Medium calling opponents of the Directive “a mob” (quickly taken down) and MEP Voss – the rapporteur – stating in an interview that “if the intention of the platform is to give people access to copyright protected works then we have to think about whether this kind of business should exist”.

The debate is now clearly raging once again. And Members of the European Parliament have one last chance to oppose the damaging provisions of this reform.

European Union

DisCo is dedicated to examining technology and policy at a global scale.  Developments in the European Union play a considerable role in shaping both European and global technology markets.  EU regulations related to copyright, competition, privacy, innovation, and trade all affect the international development of technology and tech markets.