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New Year, New Copyright Developments

· January 17, 2018

With the beginning of a new year comes a new step forward in Europe’s copyright reform. After months of debates on the copyright directive proposal, the new Bulgarian Presidency should ask EU countries for political guidance on the new neighbouring right for publishers (Article 11) and the mandatory filtering mechanisms for users uploads (Article 13).

What does this mean? To simplify, this means that negotiations on both articles carried out in technical meetings are not progressing, due to important questions about the scope and consequences of these articles, as well as strong differences of opinions between Member States. The matter is therefore handed over to a meeting of Member States’ deputy permanent representatives (the “COREPER I”), where political decisions on the direction that negotiations should take will be debated.

Regarding the new neighbouring right for publishers (Article 11), Member States’ permanent representatives will probably debate two different compromises we previously covered in detail here.

In short, one compromise could be defined as the “European Commission’s proposal on steroids”, expressly targeting news snippets. Another compromise creates a reasonable solution, by replacing this new right with a “presumption of entitlement to license and enforce the rights in their press publications”.

DisCo has long explained the danger of such a right and highlighted the strong opposition to its creation (see here and here) and hopes that Member States firmly reject the first compromise.

The adoption of Article 13, as explained as well many times previously (see here, here and here) would be the end of Internet as we know it today. Websites hosting content created by their users would be directly liable for it (and hence would probably shut down, as legal risks would be too high) and mandatory filtering mechanisms would implement broad censorship across the Internet.

A document explaining the state of play of the negotiations at the end of December spells out in black and white questions requiring political guidance. These include, in short:

  • Are websites hosting content created by their users communicating to the public (i.e. liable for every piece of content uploaded by their users)?
  • Should Article 13 state explicitly that such websites are not protected by the limited liability regime of intermediaries (article 14 of the e-Commerce directive)?

These questions are key for the future of the Internet, and spell out clearly what DisCo and many others have been saying for months: Article 13 modify, through the backdoor, the legal foundation of the Internet by removing all websites hosting user content from the scope of article 14 of the e-Commerce directive.

When debating in COREPER, the representatives of EU Member States should therefore take the utmost care to only take a decision when all economic consequences of these scenarii have been thoroughly assessed.

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.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.