May 25th, 2018, not only marked the day the GDPR entered into force, but was also the day that the Council’s permanent representatives committee (Coreper) agreed on a common position on the European Commission’s draft Directive on Copyright in the Digital Single Market.

To the disappointment of ourselves and many others, Member State governments did not deviate substantially from the Commission’s ill-advised position, and therefore all of our initial concerns remain. In practice, this means that the approved text will serve as a mandate for the Council to start negotiations with the European Parliament once it has adopted its own position towards the end of this month. It is therefore now up to the Parliament to turn this result around.

Here’s why the Parliament needs to step up and oppose Council’s position:

Article 13: Council Leaves No Choice but to Implement Upload Filters  

The text adopted last week by Member States largely maintains the Commission’s proposal under Article 13: online platforms that allow third parties to upload content must conclude licensing agreements and use upload filters to monitor unlicensed content as identified by rightsholders. The Council explicitly reinterpreted the notion of “communication to the public” as stipulated in the InfoSoc Directive, and the intermediary liability regime under the E-Commerce Directive. These are dramatic changes to existing laws that at a minimum require a thorough Impact Assessment. The Council text makes platforms directly liable for all copyright infringements by their users, except where the platform can demonstrate that “it has made best efforts to prevent the availability of specific works or other subject matter by implementing effective and proportionate measures” to prevent copyrighted content from being uploaded on their sites. But how else to demonstrate this than by the use of upload filters? This is a vicious circle scenario, in which the Council does not explicitly mandate upload filters, but does not leave internet platforms falling under the scope of Article 13 any other option.

As we, and many others, have continuously said, the proposal under Article 13 undermines intermediary liability protections for a multitude of online services, and consequently the functioning of the internet as an open space for innovation and creativity. The use of upload filters will inevitably delete content which is legal, since these type of technologies are not able to recognize certain contexts, for example under a copyright exception.

Article 13 of the Directive should be rejected in its entirety. However, we welcome the text put forward in the European Parliament by MEP Michal Boni (LIBE Opinion) in an attempt to provide a balanced solution by respecting the fundamental rights of users and taking a technologically neutral approach.

Article 11: Council Proposes 28 Different Press Publishers’ Rights

The Member States have opted to maintain the introduction of a new ancillary copyright for press publishers (Article 11). This misguided attempt to help newspaper publishers access new funding streams has not only failed both in Germany and Spain, but has received a great deal of criticism from the academic community. The Commission’s text is bad, but Member States make it worse. In attempting to clarify that the use of “insubstantial parts” of press publications should not fall within the scope of Article 11, the Council has essentially left Member States with the opportunity to determine for themselves whether this means insufficiently original parts, or parts that irrespective of their length have “no independent economic significance” — or apply both criteria. This clearly goes against any aim of creating legal certainty and a harmonised digital “single” market. On the positive side, this new right would last one year (as opposed to 20 years) from the date of the press publication, and would not have retroactive effect.  

We continue to call on the European Parliament to delete Article 11 and propose a legal presumption, as was proposed by former European Parliament rapporteur and many commentators and academics. This would target an enforcement problem with an enforcement solution, thus representing a solution that goes to the root cause of the concern at hand: press publishers’ revenue flows.

Article 3: Council Insists on a Limited Text and Data Mining (TDM) Exception

The Commission’s proposal for a new copyright exception for TDM is limited to “research institutions” as beneficiaries and “for the purposes of scientific research”. The Council has largely stuck to this narrow approach. Cultural heritage institutions have been added as beneficiaries, but the purposes of TDM activities remain unchanged. Member States have also included an optional exception under Article 3a for “temporary reproductions and extractions of lawfully accessible works and other subject-matter that form a part of the process of text and data mining”. While this provision recognises the significance of TDM techniques for a much broader range of entities that analyse large amounts of data for different purposes, the exception would be optional, once again suggesting a fragmented market.

Moreover, it is worrisome to see that the Commission’s Communication on AI does not recognise the foundational role that Text and Data Mining (TDM) plays in AI. It is contradictory for the Commission to propose a robust AI strategy, while pushing for a restrictive TDM exception within Article 3 of the copyright proposal. In various open letters addressed to the European institutions, a broad range of stakeholders call for a broader TDM exception to make Europe a global leader in AI.

What next?

The Council has missed its opportunity to support an innovative and forward-looking European copyright regime, and the ball is now in the Parliament’s court to fix the Commission’s proposal. Citizens opposing the current flawed proposal should have their voice heard with their governments and elected representatives in the European Parliament. We encourage people to use Mozilla’s ChangeCopyright tool to contact parliamentarians. Other platforms such Vox Scientia, bringing together the knowledge community, also allow awareness-raising via its “Call to Action” page. The leading Legal Affairs (JURI) parliamentary committee votes at the end of June.

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