Surprise Thursday: a leak of the Estonian presidency first compromise proposal on Articles 1, 2 and 10 to 16 of the Copyright directive proposal has suddenly dropped in DisCo’s inbox.
The first glaring conclusion is that Member States are considering dropping the publishers’ right. The second is that Articles 11 (on the publisher’s right) and 13 (on the so-called “value gap”) are still extremely divisive. The Estonian presidency presented two (sometimes widely) different options for both Articles, highlighting strong divergence between Member States despite pressure from the European Commission to reach a deal quickly.
Let’s look first at the Presidency’s proposals for the publishers’ right.
With “Option B”, the Member States are proposing to delete the new neighbouring right for publishers and replace it with something publishers themselves have previously asked for: a rebuttable presumption “to allow the publisher to be regarded as the person entitled to conclude licenses on and enforce the rights of reproduction and making available to the public concerning the digital use” of press publications.
This reasonable solution, despite focusing on an actual issue (i.e. publishers’ struggle to prove, in a digital world, that they hold all rights in the contents created for their publications), is found lacking by the European publishing industry… even though their own representatives, via the European Publishers Council, proposed a similar solution to the European Commission in 2015.
As for “Option A”, it is – to be clear – very bad. It is very similar to the European Commission’s proposal, extended to cover photographs and videos included in the press publications and targets “snippets” by expressly covering extracts of press publications.
As we’ve previously explained many times in DisCo, such a right is not supported by all press publishers, is strongly opposed by more than 80 MEPs and has been introduced with a blatant disregard of findings from the public consultation the European Commission itself commissioned. This new right failed previously and would be detrimental to small and innovative press publishers, to Internet users and more generally to the free flow of information.
What about the Presidency’s proposals for Article 13? Well, as is customary with this specific article, things are a mess – and not in a good way. In short, filtering requirements for all intermediaries with no attention paid to the e-Commerce directive – and that’s for Option A, i.e. the “soft” version!
Option B is worse than the European Commission’s initial proposal. Online hosting platforms would be performing an act of communication to the public (and so be directly liable for every piece of content uploaded by their users) and their users themselves would remain liable too. Moreover, all intermediaries (whether they benefit from the limited liability regime of the e-Commerce directive or not) would have to implement filtering technology mechanisms.
Option A, the supposed “softer” version, is only better in that it does not impose blanket copyright liability on online hosting platforms – rather, it is for courts to decide on a case by case basis whether or not they are “communicating to the public”. However, like Option B, all online hosting platforms – even if covered by article 14 of the e-Commerce directive – would have to implement ex ante mechanisms (i.e. filtering technology) to prevent copyrighted content to appear on its services.
To conclude: Member States are fiercely fighting over the creation of a new publishers’ right, with publishers actually fighting against a workable solution they themselves put forward in 2015. What’s more, both current options for Article 13 would kill the open-platform model.
A lot of work still needs to be done to obtain a copyright reform that won’t kill the Internet as we know it. Member States need to stand up for the deletion of the publishers’ right in the EU and to go even further by entirely deleting all provisions undermining the e-Commerce directive, such as Article 13.