As mentioned in our previous blog posts on the CULT and IMCO Opinions (see respectively here and here), the adoption of the Directive on Copyright in the Digital Single Market (the copyright review) requires several European Parliament (EP) Committees to draft Opinions that will then need to be ‘taken into account’ in the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee.
|The draft Report [PDF] on the copyright review from the JURI Committee was published last Friday. The Rapporteur of the draft Report is MEP Therese Comodini Cachia (EPP, Malta) and C4C is starting to wonder if copyright requires women to look at it for common sense to creep back into the debate (for full disclosure purposes, this post is written by a woman so some bias could be at play).|
Transparency & Balanced Outreach: Setting a New Standard
From a procedural point of view, it is worth nothing that MEP Comodini Cachia has certainly gone beyond the call of duty when it comes to consulting stakeholders and sharing the lobbying footprint she was exposed to: 104 meetings over only a few months. One wonders if anyone actually got any sleep at her office, but the effort certainly deserves recognition in terms of thoroughness of outreach.
Content Filtering (Article 13): The Bomb is Still Ticking on Users’ Fundamental Freedoms Whilst A Broader Array of Information Society Service Providers get Dragged In
The Ecommerce Directive is explicitly mentioned at two levels: first, for the fact that this proposal ‘complements’ it (AM2- Recital 4), and second, by being added to the list of Directives that are left intact and are in no way affected by this proposal (AM28). This sadly does not set an order of precedence and could merely imply that this legislation, as a lex specialis on copyright, will supersede the principles of the Ecommerce Directive.
Whilst AM1 (Recital 3) talks about the concept of storing (an activity that only applies to a set of information society service (ISS) providers and to a specific set of activities), other parts of the proposed text use broader terminology, hence raising a serious risk that the proposed language drags into the realm of filtering many more activities than even the original European Commission proposal intended to, such as e-commerce websites and platforms, caching services and content delivery networks, Wikipedia, social networks, code repositories such as Github, cloud computing services including software as a service and infrastructure as a service, apps, private lockers, online advertising, entertainment services including online music, video, book services and online news, web hosting providers and domain name registrars, online portals, ISPs, online payment platforms, public , etc.
AM21 & AM23 talk about ISS providers that are ‘actively and directly involved in the making available of user uploaded content to the public (…) where that activity is not of a mere technical, automatic and passive nature (…) unless they are eligible for the liability regimes provided in Article 14”. The criteria applying to the activity seem to quote CJEU case C-236/08 which interprets the E-commerce Directive but omits a key additional element put forward by the Court, namely the fact that an intermediary has knowledge of an infringement or not (‘ Accordingly, in order to establish whether the liability of a referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores‘).
Moreover, the definition to be caught under Article 13 and the cumulative nature of the criteria to meet to be excluded raises quite a few questions: could this apply to more than hosters, e.g. also ISPs? And if so, why is only Article 14 of the Ecommerce Directive referred to? Would livestream be caught under this definition (making available could mean no…but…), or embedding? It also seems to create a form of ‘contributory liability’ for anyone ‘involved’ on the Internet.
Some parts of the draft Report can however be unambiguously welcomed:
Press Publishers Right (aka Ancillary Copyright – Article 11): Calling the Publishers’ Bluff
MEP Comodini Cachia has refocused the debate around one of the key claims iterated by the publishers, namely their difficulties in enforcing their rights when news articles are copied by third parties, such as news ‘scrapers’. To respond to that claim, the draft Report puts in place a presumption to the benefit of publishers of press publications, that entitles them ‘to defend in their own name the rights of authors and seek remedies in respect of works published in their press publication’ (AM18 & 52).
In doing so, she acknowledges a claim that seemed founded, and ignores the absurdity of the neighbouring right in itself, which has been proven to be a bad solution for a real problem, namely the struggles faced by newspapers in the digital age. This struggle has been highlighted earlier this year by the European Copyright Society (ECS), composed out 21 academic members, in their Opinion [PDF] on the European Commission’s copyright reform proposals, where they noted that: ‘As indicated by its precedents in Germany and Spain, such a rule is also unlikely to achieve its intended purpose., i.e. actually to support the ailing newspaper industry’, concluding that ‘In sum, we believe the proposed measure will not in any way benefit the newspaper industry and will detract from other potentially more effective ways of promoting high-quality newspaper journalism and newspaper publishing, such as tax privileges’.
A good analysis of how bad this neighbouring right is has recently been drawn up by Alexander Peukert, Professor of Civil, Commercial and Intellectual Property Law at the Goethe University Frankfurt am Main, Faculty of Law and Cluster of Excellence “The Formation of Normative Orders”. In his study [PDF] on an EU related right for press publishers, Professor Peukert analysed three possible versions of an EU related right for press publications, and came to the conclusion that “all these versions are either incompatible with fundamental rights or, alternatively, ineffective for failing to cover the current, news-related practice of online service providers and Internet users”.
Text and Data Mining (Article 3): Progress but Loopholes Remain
MEP Comodini Cachia removes the artificial limitations to the scope of the text and data mining (TDM) exception proposed by the European Commission, by making it applicable to ‘persons’ in general that have ‘legal access’ (AM32).
AM5 (Recital 8) actually gives a very didactic explanation of why a discussion on TDM (mining facts) is even taking place in the context of copyright, namely due to the fact that an act of ‘copying’ happens at a given stage to enable the mining.
AM6 (Recital 9) also highlights one of the issues at stake, namely the fact that researchers want to be able to use their own algorithms and their own tools on their computers if they so choose to, and not be forced to use only the tools made available by publishers on their servers (not that the latter cannot be one of the options offered, as long as there is no discrimination between the various options). AM8 (Recital 10) acknowledges that research organisations in public-private partnerships should benefit from the exception, whilst giving a compensation right to the rightholders ‘related to the cost of the normalisation process’. Such compensation claims seem framed by the need to be ‘proportionate to the cost of the normalisation’ in a scenario where research organisations do not have lawful access to information, but not when they do (see AM9 – Recital 13).
For those who wonder what the whole ‘normalisation’ jargon is about, the picture below (extracted from a presentation by Peter Murray-Rust) can be helpful for the non-TDM-Geeks:
The Article 3 (3) security loophole is however not fixed by ensuring that the publishers do not put in place security measures that are disproportionate or discriminatory. It is to be noted that this element did get the attention of MEP Zdzislaw Krasnodebski (ECR, Poland) in his recently published (extremely brief) draft Opinion on copyright in the Digital Single Market from the Industry, Research and Energy (ITRE) Committee, albeit in the form of a change to a Recital.
Common sense approach to Education, Research and Cultural Heritage matters
MEP Comodini Cachia’s draft Report looks at education establishments and ‘teaching activities’ in a more ‘close-to-reality’ manner than the EC proposal (AM11, 12 & 30) and acknowledges that licensing is not always a satisfactory solution (AM14 – Recital 25a(new)).
She also broadens the scope of what ‘cultural heritage institutions’ can be (AM29), rendering it consistent with other legislation.
Fair Remuneration & Transparency
The bestseller clause proposed by the European Commission has already been highlighted as quite unsatisfactory for creators. MEP Comodini Cachia makes it slightly more realistic for that clause to be used by allowing not only individual creators but also their representative organisation to go bang on the table (AM64 & 65).
Some of the other language introduced (AM62) is more reminiscent of Directive 2011/77/EU of 27 September 2011 that amended Directive 2006/116/EC on the term of protection of copyright and certain related rights as it relates to the rights of performers and phonogram producers. In that context too, a differentiation is established between the forms of remuneration received, namely ‘(9) Upon entering into a contractual relationship with a phonogram producer, performers normally have to transfer or assign to the phonogram producer their exclusive rights of reproduction, distribution, rental and making available of fixations of their performances. In exchange, some performers are paid an advance on royalties and enjoy payments only once the phonogram producer has recouped the initial advance and made any contractually defined deductions. Other performers transfer or assign their exclusive rights in return for a one-off payment (non-recurring remuneration). This is particularly the case for performers who play in the background and do not appear in the credits (non-featured performers) but sometimes also for performers who appear in the credits (featured performers).’ This distinction between authors and performers who get a one-off payment (non-recurring remuneration) and those who are in a contractual relationship where there are ongoing payment obligations unnecessarily excludes the first category of ever getting information on the exploitation of their works and performances.
AM63 stating that ‘Member States shall ensure that authors and performers are entitled to equitable remuneration for the exploitation of their works’ does however beg the question: from whom?.
Lack of ambition in going further than the tepid EC proposal
Is it the fact that the EP is following such a demanding schedule that has led to the lack of ambition in the draft Report by MEP Comodini Cachia? It is indeed surprising that after the proposals to include a User Generated Content exception in this review by both MEP Joulaud in the CULT Opinion and MEP Stihler in the IMCO Opinion, and the inclusion of a Freedom of Panorama exception by MEP Joulaud (albeit an unsatisfactory one), that neither elements made it into MEP Comodini Cachia’s draft Report. We certainly hope that they will be put in the mix moving forward.
|While we are certainly not throwing a party yet, the trend of bringing common sense to the copyright debate initiated in parts by her colleagues from the other involved Committees has been consolidated in this draft Report. By combining the various good suggestions that are on the table, an end-result that brings back users and creators in the debate could certainly be achieved, without detriment to the fundamental objectives of what copyright should stand for, quite the contrary.|