John Tunnard, Solicitor in Media Law at Taylor&Emmet discusses the proposed EU reforms to copyright.
2018 is going to be a big year for the copyright directive and indeed the digital market reforms. This is because the Commission’s term finishes in 2019 so if these proposals are not in final form by early 2019 at the latest, they won’t get through in time.
The biggest question is whether there is sufficient political will to prioritise and push the remaining controversial areas in relation to the copyright directive through.
So where are we at this stage?
Most of the Copyright Directive is nearly in final form. We therefore know that we will have the transparency best seller rights for authors and performers. This is the right which states that authors and performers can obtain transparent disclosure from those to whom they assign their rights, in particular, in relation to how much they earn and to potentially come back and ask for more.
It is also clear that we will have the limited text and data mining exception. This has been an area which has faced much criticism from the commercial technology and science based organisations. Text and data mining is a technology gaining in importance for tasks such as analysing big data sets and training artificial intelligence systems. Not enabling other actors like independent researchers, journalists, hobbyists and companies to easily use these promising research methods – and not enabling research institutions to commercialise their breakthroughs – could have a drastic effect on discoveries.
The European Copyright Society states that the Text and data mining exception “Runs counter to the goals of copyright and the functions of economic rights”, “data mining should be permitted for non-commercial research purposes, for research conducted in a commercial context, for purposes of journalism and for any other purpose”.
In the Legal Affairs Committee it was proposed to extend the exception to all people. But the person responsible for that proposal has since left the Parliament and her successor has distanced himself from this position. It therefore seems as if the arguments coming from the commercial science and technology based organisations, has therefore been lost.
As mentioned above, the political push to implement these measures will only happen if these can be agreed before the end of the term in 2019.
So what isn’t agreed?
Article 11 Press Publisher Rights and Article 13, the so-called Value Gap Proposal.
The Commission proposes that anyone using snippets of journalistic online content must first get a license from the publisher. This new right for publishers would apply for 20 years after publication. It is clearly intended to put the press publishers in a stronger position when dealing with news aggregation services, such as Google News, which they say are unfairly exploiting publications by not paying enough from content from which they generate money. There are however still some diverging views amongst member states as to whether this rights should come in at all.
Many believe it to be an attempt to replicate at an EU level an idea that already failed badly in Germany and Spain – only applied more broadly and longer. The German law is likely about to be pronounced invalid in court, while the Spanish one “clearly had a negative impact on visibility and access to information in Spain” (European Parliamentary Research Service) Journalists certainly never saw additional remuneration.
If you thought this was a controversial sticking point, Article 13 is seen by many as being by far the most controversial proposal.
Internet platforms hosting “large amounts” of user-uploaded content must monitor user behaviour and filter their contributions to identify and prevent copyright infringement by removal or paying for unlicensed work.
The Commission wants to strengthen the music industry in negotiations with YouTube. The industry believes that the revenue Google shares with them from running ads on videos containing their content amounts to too little compared to payments from subscription services like Spotify, calling this the “Value Gap” or “Transfer of Value”.
There are a range of views and discourse across the European Community as to how this should be introduced and what form it should take.
- Should the Directive clarify whether online content sharing services fall within the scope of the right of communication to the public at all and if so, in what terms clarification should be given
- Whether the Directive should impose technical requirements on online content sharing services in terms of monitoring contents or infringing works, in particular over the speed for taking down material and so forth.
There is a big question as to how you even define online content sharing services. As stated, it is clear that the intention of the measure is to tackle the likes of Youtube, but there is of course a whole spectrum of services and a different range of both licensed and unlicensed content. Where the line will be drawn is still very much an open question.
The main concern is that the proposed measure is incompatible with existing EU law. In particular, there is the large E-Commerce Directive Elephant in the room and whether the online content sharing platforms or companies targeted by the Directive benefitted already from the Safe Harbour exception in the E-Commerce Directive. Other premises of Article 13 are also unsupported by existing law and jurisprudence, including the assertion that platforms “optimizing the presentation” of uploaded content become liable for infringements.
The E-Commerce Directive forbids general monitoring obligations, which even the European Parliament Research Service says Article 13 would establish. The EC now appears to be looking to tackle this Elephant in their proposed draft which came out a few weeks ago which deals with the questions of the E-Commerce Directive and whether the online content sharing services should be taken out of its scope or not.
In September they released a communication regarding tackling online infringement and more recently on 1 March 2018 they have gone a step further and issued a recommendation on what steps online platforms should take.
The recommendation talks about illegal content and contents which infringes copyright. For obvious reasons it concentrates predominantly on online terrorist activity and states that such online information is to be removed by platforms within as little as 1 hour. What becomes apparent is that platforms are required to maintain an active way of responding to such content but that they must make clear decisions as to what is free speech and what amounts to terrorist activity. The recommendation also requires platforms to be in close communication with law enforcement agencies.
With all this in mind and with platforms feeding back to the Commission, we hope that this will bring about new legislative measures and indeed a change to the existing E-Commerce Directive. What is clear is that it is not going to be an easy year for the Commission and the Copyright Directive.