EU Copyright Reform – Last Minute Countdown for EU Countries
When last we addressed the proposed European copyright reform on Project DisCo, negotiations among EU countries on key provisions were not progressing. Following months of pressure from the European Commission and countless compromise proposals with scant analysis of their consequences, EU countries are now likely to adopt a common position before the end of May.
Unfortunately, these most recent compromises do not include any of the feedback or address any of the concerns of human rights, privacy, civil rights and media freedom organisations, or of numerous academics, creators, libraries, higher education institutions, startups, internet service providers, open-source platforms and online services. (See here, here and here, among many other examples).
Under these compromises, online services storing and giving the public access to large amounts of content uploaded by their users are “communicating to the public.” Consequently, these online services will be held directly liable for any copyright infringement. In short, “large” online services where users can interact with comments, pictures, videos, etc. such as BuzzFeed, LinkedIn, Vimeo, Dropbox, Meetup, Tinder or GitHub will likely be removed from the scope of the e-Commerce Directive (i.e. the European “safe harbours”).
To avoid the probable shutdown of those services in the EU due to this provision, EU countries are currently putting the final touches on so called “mitigating measures” — as it is materially impossible for any online service, big or small, to negotiate copyright licenses with all past, current and future rightholders across the world, for all existing and potential copyright-protected content. It is indeed often forgotten in this debate that any internet user taking a picture and posting it on social media is also a rightholder and that music, movies and pictures are not the only kinds of content protected by copyright. What about software, architectural works, and dance choreographies?
However, the measures chosen by EU countries include the implementation of broad filtering and “notice and stay down” mechanisms across all covered services. As previously discussed on DisCo countless times — and as very well explained in this report on the limits of filtering — there is no filtering mechanism capable of identifying all copyright-infringing content with 100% accuracy. Context, for example, is key to determine whether a specific piece of content is infringing copyright. Content infringing copyright will inevitably fall through the cracks, thereby providing incentives for online services to “over take down” content, i.e. remove non-infringing content, to limit as much as possible their liability.
In an effort to further limit the impact of this provision, EU countries are also excluding specific online services from the scope, such as not-for-profit online encyclopedias. However, this list is rather perfunctory; for example, it does not even exclude open source software development platforms such as GitHub, when the ostensible purpose of this proposal is to “only” target big content platforms.
And what to say about the new “press publishers’ right” (formerly known as “ancillary copyright for press publishers”)? Despite all available evidence that the introduction of similar rights in Spain and Germany have failed, EU countries have nonetheless decided to require online services to obtain a license to display short extracts of articles. In doing so this measure creates an overly broad and unworkable right that ultimately hinders the free flow of information. Interestingly, this appalling decision might be traced in part to the strong links between German publishers and key German policymakers in Brussels, as detailed in a recent article by New Europe.
To sum up: instead of working on an ambitious and future-proof copyright proposal fit for the digital age, EU countries have been negotiating rushed and politically-driven compromises lacking a thorough impact assessment. Barring a last minute deus ex machina plot twist, the EU Council’s position on the proposed copyright reform will be disastrous for users’ rights and the European digital sector. As recently highlighted by the previous rapporteur ex-MEP Comodini Cachia, the voices of the two groups that stand to suffer the most from this proposal — the original artists and the public — are not being heard.