European Parliament to Decide on Copyright Reform
If at times, the negotiations around the European copyright reform have seemed endless, it’s understandable. It was two years ago that the European Commission published its proposed Copyright Directive. It was around three years ago that debates and roundtables started.
And suddenly, everything accelerated – if, unfortunately, in a dangerous direction. The European Council adopted its position at the end of May, without addressing the concerns of civil rights and media freedom organisations, academics, libraries, higher education institutions and online services (see our blog post here).
The Legal Affairs Committee of the European Parliament, in charge of this file, adopted its own report on June 20. (See here, with an erratum on Article 11 here). It was disappointing, to say the least.
This report introduces, like the European Council, a full ‘press publishers’ right’ in Article 11. (See here for an explanation of this concept). Of note, this version of Article 11: (1) includes ‘news agencies’ in its scope, (2) considers that a listing of a press article in a search engine has to be covered by a license (see recital 32) and (3) protects press articles for 5 years after their publication.
Formally, hyperlinks are indeed excluded from the scope (see article 11.2a). However, no protection for short extracts of text (or ‘snippets’) is included, when these snippets accompany the billions of hyperlinks online today to explain to Internet users what they link to. If the press publishers’ right is implemented, the continued display of these snippets would require licenses for each new link – or else users would only be left with a blue hyperlink, without any context.
The Legal Affairs Committee’s report also includes the ‘upload filters’ provisions (article 13). Online services defined as ‘online content sharing service providers’ (a broad range of services where users can interact) are within the scope – with only a few explicitly removed. At least, this time, open source development platforms like GitHub are excluded.
Otherwise, the Committee has gone along, more or less, with the European Council’s approach on Article 13 (the ‘upload filters’). ‘Online content sharing service providers’ are not protected by the limited liability regime of the e-Commerce Directive – leaving them with two options to stay in business: (1) get licenses from all existing rightholders for all kinds of copyright-protected content uploaded every second on their services (noting also that ‘copyright-protected content’ is not limited to songs or videos) and/or (2) use ‘appropriate and proportionate’ measures leading to ‘the non-availability’ of content infringing copyright.
Problem: as explained previously, ‘measures’ mean filtering mechanisms. Filtering mechanisms do not exist for all kinds of copyright-protected content – and do not work well when they exist. By first making ‘online content sharing service providers’ liable for every piece of content uploaded by their users, service providers are incentivised to implement filtering mechanisms with very strict settings – i.e. mechanisms taking down potentially legal content, when that assessment is not obvious.
On July 5, all European Members of the Parliament will have the opportunity to say whether they support the direction chosen by the Legal Affairs Committee – and so to weigh in on which direction Internet regulation should take in Europe. As for us, we hope that they will reject this position and consider more balanced copyright rules fit for the digital age.