26 February 2019
The Copyright Directive has cleared another hurdle after receiving the approval of the Committee on Legal Affairs (JURI) at a vote on 25 February. Approval was achieved with 16 votes to 9, with no abstentions. A break-down of voter details show that approval was driven predominantly by the EPP (Conservatives), with a notable complete backing by French committee members. In keeping with a previous statement of dissent, Swedish, Finnish, Polish and Italian committee members voted against the Directive, with German members split (Voss voting for, Reda, Woelken and Gebhardt voting against). Speaking in the aftermath of the vote, Rapporteur Voss praised the outcome, and reassured that “freedom of expression is not touched” by the new Directive.
The result has not been short of support. A press release by the European Composer and Songwriter Alliance praised the “positive and historical signal” to authors looking to be fairly remunerated for their work. The European Newspaper Publishers’ Association has also welcomed the decision, which they describe as a “proportionate approach that does not stifle digital innovation”. Whilst fresh statements are yet to be released by the music industry, a previous statement of support (issued post-COREPER vote) from organisations including IMPALA and IMPF also spoke of the Directive’s “historical opportunity” which they urged to be adopted quickly.
Despite a controversial “opt-out” provision for the new text and data mining provisions in article 3a, research institutions including EARE and ESOMAR have welcomed the new mandatory exceptions, and encouraged the onward adoption of this.
Critics of the proposed Directive continue to caution on the most controversial articles, namely article 11 (press publishers’ right) and article 13 (online platform liability provisions). Following the vote, Anriette Esterhuysen (former executive director of the Association for Progressive Communications) spoke in an interview with CopyBuzz on the need to bring stakeholders “back to the drawing board” on article 13, and labelled article 11 as a “disaster”. Ahead of the European Parliament elections, a new “Pledge 2019” petition has also been initiated, which promises to only vote for MEPs where they vote against article 13. Further street protests have also been organised for 23 March.
A new and developing controversy is also apparent following the last-minute additions for provisions relating to visual arts in the public domain (article 10b and recital 30a of the compromise text). This provision was apparently adopted as a means to prevent copyright protection in reproductions of “visual art” (undefined) where copyright in the underlying work has expired (this provision having been discussed at an earlier point in relation to article 5 on cultural heritage). This would seemingly prevent copyright protection in e.g. photographs or replicas where they are based on visual art in the public domain unless, the article caveats, the reproduction is “original in the sense that it is the author’s own intellectual creation”. Recital 30a notes that: “[t]his should not prevent cultural heritage institutions from selling reproductions, such as postcards”. The Centre of the Picture Industry (whilst supporting article 13) expressed their “extreme disappointment” at these new provisions, of which relevant sectors were not consulted on (much in the same vein as the proposed sports organisers rights in article 12a – since dropped). The new provision, they claim, will jeopardise digitisation efforts and means of remuneration for cultural heritage institutions.
The Directive’s last legislative hurdle falls in the final week of March (anticipated 25-28 March), where a plenary vote will take place at the European Parliament.