Directive on Copyright in the Digital Single Market

Directive 52016PC0593
European Union directive
Text with EEA relevance
Title Directive on Copyright in the Digital Single Market
Made under Articles 53(1), 62 and 114
Preparative texts
Commission proposal COM/2016/0593 final - 2016/0280 (COD)
EESC opinion OJ C 125, 21.4.2017, p. 27–33 (BG, ES, CS, DA, DE, ET, EL, EN, FR, HR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
EP opinion
Reports
Other legislation
Amends Database Directive (Directive 96/9)
Copyright Directive (Directive 2001/29/EC)
Proposed

The Directive on Copyright in the Digital Single Market 2016/0280(COD), also known as the EU Copyright Directive,[1] is a proposed European Union directive intended to harmonise aspects of the European Union copyright law and moved towards a Digital Single Market.[2][3][4] First introduced by the European Parliament Committee on Legal Affairs on 20 June 2018, the directive was approved by the European Parliament on 12 September 2018, and will enter formal Trilogue discussions that are expected to conclude in January 2019. If formalised, each of the EU's member countries would then be required to enact laws to support the directive.[5]

The European Council describe their key goals as protecting press publications, reducing the "value gap" between the profits made by internet platforms and content creators, encouraging "collaboration" between these two groups, and creating copyright exceptions for text and data mining.[6] The directive's specific proposals include giving press publishers direct copyright over use of their publications by internet platforms such as online news aggregators (Article 11) and requiring websites who primarily host content posted by users to take "effective and proportionate" measures to prevent unauthorised postings of copyrighted content or be liable for their users' actions (Article 13).

Articles 11 and 13 have attracted widespread criticism from European and American parties. Article 11 has been criticised as a "link tax" which would require websites "to obtain a license before linking to news stories",[7] and Article 13 as a "meme ban", on the basis that the content-matching technologies employed to meet its requirements cannot identify fair dealing such as parody.[8] Supporters of the directive, largely media groups and publishers, reject these arguments and claim that a disinformation and astroturfing campaign is being carried out by big internet platforms who benefit from the status quo, such as Google.[9][10][11][12]

History

Background

The European Union (EU)'s first attempt to unify copyrights in light of digital technologies was adopted in 2001 as the Copyright Directive 2001/29/EC.[13] The Directive's major objectives were to harmonize EU legislation with international law (as set by the 1996 World Intellectual Property Organization treaties), to strengthen intellectual property protection, to reduce conflicts in copyright laws between member states, and to assure adequate remuneration to content producers.[14] While some parts of the 2001 Directive were effective, other parts of the directive were not satisfactory for the current digital market long after its implementation. In 2012, the European Commission (EC) announced that they would be reviewing the 2001 Directive and having stakeholder discussions in light of several issues raised with failed copyright proposals from those in the European Commissioner for Internal Market and Services position.[15] The EC took public comments from December 2013 through March 2014, and published its first report on the state of the EU copyright law in July 2014.[16]

Shortly thereafter, Jean-Claude Juncker was elected to the President of the European Commission and took office in November 2014.[17] In his campaign position, Juncker saw the potential to improve the EU's financial status by harmonising the various digital marketplaces among member nations to create job opportunities and drive a knowledge-based society. Juncker placed Andrus Ansip as Vice-President for the Digital Single Market within the EC that year, tasked with working with the European Commissioner for Digital Economy and Society (at the time, Günther Oettinger) and other sections within the EC to come up with the necessary legislative steps that would be required to implement a Digital Single Market.[18] Initial plans for the legislative steps and their potential impact were announced by the EC in May 2015. Ansip stated that by the implementation of a Digital Single Market, they could increase the European gross domestic product by as much as €415 billion per year.[19][20] The European Parliament, following up on a report on the state of European Copyright from MEP Julia Reda that identified several inadequacies of the 2001 Copyright Directive, affirmed support for the EC's goal of a Digital Single Market as well as supporting an initiative with the EP for similar copyright reform.[21] The EC subsequently began working on establishing the legal framework by the end of 2015.[22]

Legislative process

The first draft of the proposed Directive from the EC was issued on 14 September 2016,[23] Following revisions, the Council of the European Union's Committee of Permanent Representatives (COREPER) approved of the EC's legislative directives on 25 May 2018 and prepared to bring the matter to vote in the EP.[24] to reach a final text, without the support of Germany, Finland, the Netherlands, Slovenia, Belgium, or Hungary.[25] The European Parliament Committee on Legal Affairs finalised their amendments to the directive on 20 June 2018 and put them toward the parliament for negotiation.[26]

Member of the European Parliament (MEPs) voted on 5 July 2018 not to proceed to the negotiation stage, but instead to reopen the directive for debate in September 2018.[27][28] There were 318 votes to re-open the debate, 278 to proceed, and 31 abstentions.[1][29]

On 12 September 2018, an updated position of the parliament was approved with the final vote being 438 in favour and 226 against,[30] meaning that trilogue negotiations can start between the European Commission, the Council of the European Union and the European Parliament, with an expected conclusion in early 2019. Should the three groups agree to the final language, then the directive will be sent to governments of the 27 member states to be passed as laws within those countries, with each country formalising certain processes as necessary to meet their existing laws.[31]

Content

Article 3

Article 3 proposes a copyright exception for text and data mining (TDM) for the purposes of scientific research.[32] The COREPER version has both a mandatory and an optional extension.[24]

Depending on whether it acknowledges the public domain status of facts and information, the TDM exception could increase or decrease restrictions compared to the status quo.[33]

Article 4

Article 4 proposes a mandatory exception for the use of copyrighted works as part of "digital and cross-border teaching activities". This article, when implemented, would clarify that educational establishments can make non-commercial use of copyrighted works for illustrative purposes.

There have been worries from the educational sector that the exception proposed in article 4 is too limiting. For example, the sector proposes to broaden the scope of "educational establishments" to include cultural heritage institutions. The most debated part of the article is 4(2), under which the exception would not be available if there are "adequate licenses" available in the market.[34]

The COREPER version has changes to reflect the arguments of the education sector, but still includes the debated article 4(2).

Article 11

Article 11 extends the 2001 Copyright Directive to grant publishers direct copyright over "online use of their press publications by information society service providers".[26] Under current EU law publishers instead rely on authors assigning copyright to them and must prove rights ownership for each individual work.[35]

The proposal attaches several new conditions to the right, including expiry after one year and exemptions for either copying an "insubstantial" part of a work or for copying it in the course of academic or scientific research.[26] It is derived from the ancillary copyright for press publishers which was introduced in Germany in 2013.[35] Press publishing, "whose purpose is to inform the general public and which are periodically or regularly updated", is distinguished from academic and scientific publishing (Recital 33).[24]

In their explanatory memorandum, the Council describe existing rights enforcement for online use of press publications as "complex and inefficient" and draw particular attention toward the use of news articles by "news aggregators or media monitoring services" for commercial purposes, and the problems faced by press publishers in licensing their work for such services.[24] A study commissioned by the European Commission, which analysed the implementation of similar laws in Germany and Spain (with the latter having, notably, resulted in discontinuation of Google News in that country), found that newspapers actually benefited from the increased exposure (and in turn, ad revenue from traffic) that news aggregation platforms attracted to their online articles, noting that "the German and Spanish cases show that the law can create a right", but that "market forces have valued this right at a zero price".[36][35][37][38]

The version of the directive voted on by European Parliament Committee on Legal Affairs contained explicit exemptions for the act of hyperlinking and "legitimate private and non-commercial use of press publications by individual users".[39]

Article 13

Article 13 strips the "mere conduit" exemption from copyright infringement from for-profit "online content sharing service providers". It then goes on to add an exemption to liability for those who implement "effective and proportionate measures" to "prevent the availability of specific [unlicensed] works identified by rightsholders", act "expeditiously" to remove them, and demonstrate that their "best efforts" had been made to "prevent their future availability". It extends any licenses granted to content hosts to their users, as long as those users are not acting "on a commercial basis".[24]

The article directs member states to consider the size of the provider, the amount of content uploaded, and the effectiveness of the measures imposed "in light of technological developments". It also mandates an appeals process,[24] and requires content hosts to share "information on the use of content" with its owners, the lack of which has been a point of contention in the past.[40]

Article 13 has faced widespread criticism over the possibility that it could create a chilling effect on online expression. Although the article requires only "best efforts" from providers, it is widely accepted by critics and proponents alike that in order to meet the requirement of preventing future availability, larger companies would need to implement content matching technology similar to YouTube's "Content ID" system.[41][8] Critics emphasise the issue of false positives within such systems, and their inability to account for copyright limitations such as fair dealing (leading, they allege, to a "meme ban").[4] Supporters and third parties point out that YouTube has used Content ID for a decade and yet remains a successful host for content of all kinds.[41][42]

Other claims from critics include suggestions that all content providers will be forced to use expensive content filters, that only major U.S. technology firms had sufficient resources to develop such systems,[43] and that outsourcing the task has privacy implications.[44]

Coverage

Article 13's provisions target commercial web hosts which "store and give the public access to a large amount of works or other subject-matter uploaded by its users which [they] organise and promote for profit-making purposes". The proposal makes explicit that this does not include private cloud storage services, non-profit encyclopedias (such as Wikipedia), non-profit educational or scientific repositories, nor a variety of other cases.[24]

The article's provisions do not apply to all commercial content hosts equally. The proposal explains that "[small and micro enterprises] should only be expected to expeditiously remove specific unauthorised works and other subject matter upon notification by rightholders [sic]", and that "different measures may be appropriate and proportionate per type of content" [24]. "Small" and "micro" are defined in Title I of the Annex to Commission Recommendation 2003/361/EC; As of June 2018, this covers businesses with less than 50 employees and less than 10 million on their annual turnover or annual balance sheet[45].

Article 15

Article 15 aims to allow authors to increase their remuneration in some cases where it is disproportionately low. The proposed articles 14–16, while weaker than systems existing in many member states, would improve the bargaining position of authors and performers.[35]

Associations of authors had proposed a "rights reversion mechanism" which would allow cancelling a copyright transfer agreement proven to be disadvantageous.[46][47]

Other passages of the proposal attempt to clarify the legal status of certain common activities by libraries and of orphan works.[48]

The amendments approved by some European Parliament committees would address issues with the public domain and freedom of panorama.[49]

Positions

Support

The directive is supported by publishers,[50] major music labels, mainstream newspapers, and some artists.[51] A campaign organised by the European Grouping of Societies of Authors and Composers collected over 32,000 signatures from creators including David Guetta, Ennio Morricone, Jean-Michel Jarre, and the band Air.[52] Other supporters include musicians Paul McCartney and James Blunt,[53] author Philip Pullman (as head of the Society of Authors),[54][55] the Independent Music Companies Association,[9] and German publisher Axel Springer.[56]

Support in the European Parliament is led by the directive's rapporteur, Axel Voss an MEP for Germany and a member of the European People's Party group, another proponent for the directive.[57] Political supporters at a national level include the UK Labour Party.[58] Voss rejects critics' arguments against the directive, and in particular describes talk of censorship as "unjustified, excessive, objectively wrong and dishonest". He points out that content filtering technology has been in use on YouTube for a decade without having ever sparked an "anti-censorship campaign",[41] and accuses "big [internet] platforms" of mounting a "fake news campaign".[59] Tom Watson MP, deputy leader of the UK Labour Party, said "we have got to secure for the workers...the full fruits of their industry. Google are trying to prevent that from happening".[58]

Publishing trade bodies similarly claim that a "bad-faith" "misleading campaign", also called a "disinformation campaign", is being carried out. They specifically name Wikipedia and Google as orchestrators,[50][9][10][11][60] claiming that Wikipedia and other platforms engaged in "inacceptable misleading campaigns ... to influence MEPs" and pointing out that Google spent €4.5 million lobbying in Europe during 2016,[61] is among the sponsors of the Electronic Frontier Foundation, another leading opponent,[62] and was seen asking its partners to lobby against the reform.[63] The publishers argue that licensed content providers such as Spotify and Netflix are also negatively affected by the current copyright regime, which they say benefits user-driven platforms such as YouTube (owned by Google) and Facebook.[64][60] They claim reports of spambots flooding MEPs with so many anti-copyright emails that they can no longer carry out their work.[9][11][60]

Newspapers in open support of the directive pejoratively label some of those opposed as "the largest, richest corporate entities in the world". In an editorial, the Financial Times stated that "YouTube controls 60 per cent of all streaming audio business, but pays only 11 per cent of the revenues that artists receive".[65] Others newspapers focus on Article 11, arguing that the reform is a battle between European media pluralism and monopolistic foreign internet giants.[66][67] In general, there is agreement among mainstream press sources that internet platforms are lobbying against the bill to support their financial interests.[68]

A group of nine major European press publishers including Agence France-Presse, the Press Association, and the European Alliance of News Agencies issued a letter strongly supporting the proposal, describing it as "key for the media industry, the consumer’s future access to news, and ultimately a healthy democracy". In the letter, they cite existing state support for struggling news media and argue that it should instead be provided by the "internet giants" which have been "siphoning off" advertising revenue.[69]

Opposition

The banner block on Italian Wikipedia. Other blocked Wikipedias had analogous messages.
The banner on the English Wikipedia seen from a German IP address.

Articles 11 and 13 of the directive have faced widespread criticism.[70][71] They are opposed by more than 200 academics from over 25 research centres, authors, journalists,[72] publishers,[73][74] law scholars,[75][76][77] Internet experts,[78] cultural institutions,[79] users, civil rights organisations,[80][81] lawmakers[82] and EU studies.[35] Creators are divided, with artists of different opinions either supporting or opposing the directive.[51]

Google, the owner of YouTube, has opposed the directive since its first inception in 2016, when they argued that the proposals would "turn the internet into a place where everything uploaded to the web must be cleared by lawyers".[83] In 2018 the company encouraged news publishers in its Digital News Initiative, members of which are eligible for grants from a €150m fund, to lobby MEPs on the proposals.[63]

Facebook is also opposed, arguing that the proposal "could have serious, unintended consequences for an open and creative internet".[84]

Campaigners criticise Article 11 as a "link tax" which would require website publishers "to obtain a license before linking to news stories",[7] and Article 13 as a "meme ban", on the basis that the content-matching technologies employed to meet its requirements cannot identify fair dealing such as parody.[8]

Other campaigners, like the Copyright for Creativity coalition, claim the duration of copyright is too long, the proposals are outdated, create no harmonisation and a dysfunctional implementation and enforcement of the rules.[85]

Academic criticism has instead emphasised concern about the effectiveness of Article 11's impact on the readership of online publication and of Article 13's obligations on service providers that will "benefit big players".[72] Individuals who have publicly opposed the law include comedian Stephen Fry; author Neil Gaiman;[86] Tim Berners-Lee, creator of the World Wide Web; Vint Cerf, co-inventor of the Internet protocol suite; and Jimmy Wales, co-founder of Wikipedia; who raise concerns regarding the costs and effectiveness of upload filters and the negative effects on free speech online.[87] Human Rights Watch and Reporters Without Borders were among signatories of an open letter opposing article 13.[88] SPARC Europe called for the removal of Article 11, arguing that it would "make the last two decades of news less accessible to researchers and the public, leading to a distortion of the public's knowledge and memory of past events", and if extended to academic publishing, would "in effect ask readers to pay publishers for access to works for which authors, institutions or research funders had already paid publishers to make freely accessible to all under 'open access' terms".[89][72]

A Change.org petition has gathered more than 950,000 signatures as of 2 September 2018.[4][38] A few days before the parliamentary vote, Wikipedia started a campaign against the directive.[50]

Widely critical accounts of the proposal have been published by major newspapers in Austria,[90] France,[91] Germany,[92][93] Ireland,[94] Italy,[95][96] Poland,[97] Spain,[98] and Slovakia.[99]

145 organisations from the areas of human and digital rights, media freedom, publishing, libraries, educational institutions, software developers, and Internet service providers signed a letter opposing the proposed legislation on 26 April 2018.[100] Some of those opposed include the Electronic Frontier Foundation, Creative Commons, European Digital Rights,[100] the Max Planck Society,[4] GitHub,[101] various Wikimedia chapters,[100] and the Wikimedia Foundation (the parent organisation of Wikipedia).[102] The Italian Wikipedia,[103][104][105] later followed by others including the Spanish,[104][106] Estonian, Latvian, Polish,[104][105] French and Portuguese ones,[107] blacked its pages for readers on 3–5 July, whereas the English Wikipedia added a banner asking the readers in Europe to contact their representatives in the European parliament.[103]

Members of the European Parliament who oppose the changes include Julia Reda, Heidi Hautala, and Dan Dalton.[108][109][110] Julia Reda describes the efforts behind the law as large media companies trying to force "platforms and search engines to use their snippets and to pay for them".[111] Parties that oppose the legislation include the European Green Party.[110]

Academic publishing

The proposal is generally supported by academic publishers including the International Association of Scientific, Technical, and Medical Publishers.[112] This group has nevertheless criticised the proposal for excluding scientific publishers from the provisions of Article 11, describing the exclusion as "unwarranted and potentially discriminatory".[113]

The European Council for Doctoral Candidates and Junior Researchers opposes the proposal on the grounds that Article 13's exemption for non-commercial groups does not cover all scientific repositories, and cites the Horizon 2020 project as an example of commercial work in the sector. They also generally agree with the claims of other opponents.[114] The Scholarly Publishing and Academic Resources Coalition, an open access advocacy group, opposes the proposal in principle.[112]

In some recent decisions, the European Court of Justice has hinted that content recognition technologies might be incompatible with fundamental rights. This would go directly against some of the provisions of the copyright directive proposal. For example, in the SABAM v Netlog case, the Court stated that "The freedom of expression and information may be affected negatively in cases where the services limit user uploaded content in an unjustified manner (for example when an exception or a limitation to copyright applies or the content is in public domain) or when the technologies fail to identify the content correctly. This negative impact should be mitigated by the fact that the services would be obliged to put in place the necessary procedural safeguards for the users which in the majority of cases already exist in the related context of notice and take down requests" (§§ 153-154).[115]

A similar view can be seen in Case C-160/15 GS Media BV v Sanoma Media Netherlands BV, Playboy & Britt Geertruida Dekker and in Case C-70/10 Scarlet Extended SA v SABAM, BEA Video, BEA Music & ISPA.

Human rights

The Office of the United Nations High Commissioner for Human Rights raised concerns that the proposal was incompatible with the 1966 International Covenant on Civil and Political Rights. In a public letter, special rapporteur David Kaye argued that the proposal's reluctance to pin down precise obligations on content hosts created "significant legal uncertainty" inconsistent with the covenant's requirement that any restrictions on freedom of expression be "provided by law". He concluded that this could lead to "pressure on content sharing providers to err on the side of caution". Kaye also criticised the lack of "prior judicial review" inherent in the system, and the similarly extrajudicial nature of its appeals process.[116]

The letter also raised concerns regarding the lack of protection for non-profit groups, although such groups had been excluded from the proposal's provisions prior to its publication.[24] The EU was invited to respond within 60 days.

See also

References

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    Khan, Mehreen (2018-07-05). "MEPs reject EU copyright reforms in victory for internet giants". Financial Times. Retrieved 2018-07-05.
    Duke, Simon (2018-07-01). "Google searches for way round EU copyright". The Sunday Times. ISSN 0956-1382. Retrieved 2018-07-06.
    Schechner, Sam (2018-07-05). "Tech Companies Win Reprieve as EU Parliament Delays Copyright Law". Wall Street Journal. ISSN 0099-9660. Retrieved 2018-07-06.
    "Tech Giants Are Stronger Than Paul McCartney". Bloomberg.com. Retrieved 2018-07-06.
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  114. ↑ Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV., ECLI:EU:C:2012:85
  115. ↑ Kaye, David (13 June 2018). "European Union draft directive on copyright in the digital single market" (PDF). UNHCHR. OL OTH 41/2018.

Further reading

  • Romero-Moreno, Felipe (29 May 2018). "'Notice and staydown' and social media: amending Article 13 of the Proposed Directive on Copyright". International Review of Law, Computers & Technology: 1–24. doi:10.1080/13600869.2018.1475906. ISSN 1360-0869 – via Taylor & Francis.
  • "Wikimedia Public Policy: It's time for an update. Tell the European Parliament to fix copyright". Retrieved Sep 11, 2018. On September 12, the European Parliament will vote on changes to a copyright law that will dictate how we communicate in the digital age (translated in 24 languages)
  • Procedure file
  • The text of the European Council proposal as of 25 May 2018
  • The text of European Parliament Committee on Legal Affairs's proposed negotiating position
  • Copyright reform document pool
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