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Copyright Reform. It’s a few votes away. The European Union may require those who share news to obtain licences first (permissions against payment). The European Union may require platforms to filter content uploaded by users (aimed at music files but also affecting other forms of digital expression). What is the evidence for such radical measures? This resource tracks the progress of the European Commission's Reform Package through the complex EU process of law making.

** Update 26 March 2019:
European Parliament approves Directive by 348 votes in favour, 274 against 

** Update 15 April 2019: Council of the European Union approves Directive by qualified majorityItaly, Luxembourg, Netherlands, Poland, Finland, Sweden vote against; Belgium, Estonia, Slovenia abstain; Germany adds a Protocol that states her understanding about achieving a national implementation (under Article 17(10) in dialogue with all stakeholder interests) that avoids upload filters and targets only 'dominant platforms'.  Dissent and German protocol are available here.

OFFICIAL TEXT OF ADOPTED DIRECTIVE on EUR-Lex: Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC


Work on the Implementation of the Directive into national laws is under way. We are contributing to the process through a new Implementation resource page and an academically brokered Round Table.


Click on the images below to view, download and print:

Official Trilogue Agreement Agreed Compromise Text Four-Column Comparison Document
Official version of the trilogue agreement that was adopted by Parliament in the plenary session on 26 March 2019. The articles have been renumbered. Article 11 becomes 15; Article 13 becomes 17. Following trilogue negotiations throughout Winter 2018/2019, this is the text agreed upon by national governments at a COREPER meeting of 20 February 2019, and endorsed by JURI on 26 February 2019. A multi-column document detailing the original positions of the Commission, Parliament and Council, with the agreed compromise text detailed in the fourth column.


Original Commission Proposal Translation of Original Commission Proposal Agreed Council Position Rejected JURI Position Agreed Parliamentary Position Unsuccessful amendments proposed by MEP Marietje Schaake
The original Copyright Directive Proposal as published by the EU Commission on 14 September 2016. A plain speak/plain English translation of the articles of the Original Commission Proposal, produced by CREATe. The position agreed by the EU Council, dated 25 May 2018, granting a negotiation mandate to the (then) Bulgarian Presidency. The position adopted by JURI, dated 29 June 2018. This position was rejected at the plenary vote of the European Parliament on 5 July 2018. Plenary amendments adopted by the EU Parliament on 12 September 2018, granting a negotiation mandate to rapporteur Axel Voss. A progressive alternative: Unsuccessful amendments tabled by a group of MEPs from ALDE, S&D, EPP and ECR on 6 September 2018.

A side-by-side comparison tool of the draft Directive and Council and Parliament positions (by Glasgow-based tech news company Indivigital) is available here:

[restabs alignment="osc-tabs-left" responsive="false"]
[restab title="INTRODUCTION" active="active"]Following the adoption of a position of the Council of the European Union on 25 May 2018, the European Parliament’s Legal Affairs Committee (JURI) 
narrowly voted in favour of the key provisions of the proposed Copyright Directive on 20 June. It also gave a mandate to Rapporteur MEP Axel Voss to start trilogue negotiations with the Council and Commission. A full plenary vote by the European Parliament on 5 July 2018 challenged the JURI vote, and rejected the negotiation mandate and JURI report with 318 to 278 votes (and 31 abstentions).

On 12 September 2018, the Parliament finally adopted a position on the Copyright Directive, with 438 votes in favour, 226 against, and 39 abstentions. Amendments drafted by Rapporteur Voss on behalf of the centre-right European People's Party (EPP) secured a majority: Article 11 (Press publishers right) with 393 votes to 279, and Article 13 (New obligations for platforms) with 366 votes to 297. Most of the original language of each of these provisions remain intact, and a side-by-side comparison of the original Commission text vis-à-vis the agreed amendments is available here. A video of the press conference following the vote is available here.

There will be a final vote after the trilogue negotiations, anticipated for Spring 2019. It is rare for a plenary vote to reject proposed legislation that has reached an advanced stage. The Anti-Counterfeiting Trade Agreement (ACTA) in 2012 is such an example.

The graph below details the legislative process from 2016 (first draft) to 2021 (anticipated date of implementation into domestic law).


Copyright law is subject to intense lobbying.

We hear: Fake news will take over unless we create new exclusive rights for press publishers. Or alternatively: The democratic function of the internet is in peril if we require permissions to be obtained for disseminating news.

We hear: More creative content is being consumed than ever before, but the value is appropriated by online platforms not creators. Forcing platforms to obtain licences will lead to increased remuneration for creators. Or alternatively:  Imposing filtering obligations on platforms will limit user engagement, and reduce opportunities for start-ups and emerging creators.

This is an important junction in copyright policy, as the Copyright Directive could be the most far reaching European copyright intervention since the 2001 Information Society Directive.

CREATe believes that we can actually know who is right, and who is wrong. The evidence is available. This resource page signposts significant independent scientific research. It also offers a timeline of the policy making process for the Copyright in the Digital Single Market directive, and access to draft documents where they have become available (sometimes as leaks).

[restab title="CONTEXT"]

The recent wave of copyright reform began in 2014 in an optimistic mood.

At the beginning of the current term of the European Commission, President Juncker wrote (September 2014) in the mission letter to Andrus Ansip, Vice-President for the Digital Single Market:

“You should focus on -  Bringing together the different regulatory powers of the Commission to complete the Digital Single Market. … [notably by] modernising copyright rules in the light of the ongoing digital revolution”

To Günther Oettinger, then Commissioner for Digital Economy and Society (who was holding the drafting pen for the coming Copyright interventions), Juncker wrote:

 “You should set clear long-term strategic goals to offer legal certainty to the sector and create the right regulatory environment to foster investment and innovative businesses. You should also ensure that users are at the centre of your action (…). They should be offered access to services, music, movies and sports events on their electronic devices wherever they are in Europe and regardless of borders”.

 “Copyright rules should be modernised, during the first part of this mandate, in the light of the digital revolution, new consumer behaviour and Europe’s cultural diversity”.

On 14 September 2016, the European Commission published a package of reform proposals. It is a complicated package, supported by over 400 pages of Impact Assessments.

Progress of the Copyright in the Digital Single Market Directive (COM(2016) 593 final – the most important intervention) can be followed on the timeline below. Martin Kretschmer’s blog post summarises the position as of 11 May 2017 (available here)..


The full text of the Commission proposal is available here, with opinions by Internal Market, Industry, Culture and Civil Liberties Committees also available. The Legal Affairs Committee Draft Report is available here, with details of over 1000 proposed amendments.

The aims of the Copyright Reform agenda, as articulated by the Commission, are:

  1. More cross-border access to content online;
  2. Wider opportunities to use copyrighted materials in education, research and cultural heritage;
  3. A better functioning copyright marketplace.

Apart from the Copyright in the Digital Single Market directive, the copyright package also includes legislation on the cross border portability of online subscriptions for content: Regulation (EU) 2017/1128 on cross-border portability of online content services in the internal market(14 June 2017), a "SatCab" Regulation on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes (COM/2016/0594 final - 2016/0284 (COD)), and provisions implementing the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. And there is a proposal to amend the Audiovisual Media Services Directive (AVMSD) published by the European Commission on 25 May 2016. Legislative progress can be followed here.

Public positions of the European Parliament’s rapporteur and shadow rapporteurs
Voss (EPP)
Reda (Greens/EFA)
Cavada (ALDE)
Stihler (S&D)

[restab title="MEDIA COVERAGE"]

Links to media coverage of the Directive from across the EU and internationally, from 24 May 2018 to 19 Sept 2018.



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[restab title="Julia Reda" active="active"]

[expand title="Click here to see transcript from Julia Reda." swaptitle="Transcript from Julia Reda"]
“… Ladies and gentlemen, there are three things in the debate on copyright that have been hitherto unknown.

First of all, 200,000 people this weekend demonstrated against this reform. Five million have signed a petition against upload filters. There’s never been such a broad protest against an EU directive.

Secondly, there have never been any protests that have been so roundly ignored in this house. Already in summer, electors – voters - were bombarded with disinformation campaigns, and instead of tackling the criticism, any critical voices were simply met with offence. Colleagues such as Cavada kept saying that emails were coming from bots. EU Commissioners were calling the criticisers [mobs]. Caspary said that protesters are being paid. All of this defamation is a pure fiction and it’s easy to refute it. They’ve been launched by just a few lobby groups and are being disseminated in all sorts of newspapers that are hoping to profit from the copyright reform. But unfortunately, this disinformation has worked. Today when pictures of mass demonstrations are being broadcast around the world, people still believe that these emails don’t come from real people. This belief, that criticism was controlled from America, has lured people to actually grapple with the content, irrespective of warnings [about] upload filters that are coming from the UN Special Rapporteur for Freedom of Opinion or the Federal Commissioner for Data Protection, or other research centres.”


“Thirdly neither the union nor the opposition [SPD] actually think this is a good reform. No one wants to take the political responsibility for these upload filters that are part of Article 13. But the federal government is still going to vote in favour.

Colleagues, you’ve had your time I’d also like to have my time please. Madame President I’m waiting for silence in the room.”

(The President asks Members to rest)

“No one in the German government wants to take responsibility for these upload filters, not even Chancellor Merkel. But the German government is still going to vote in favour, and since yesterday we know why that might be the case. Because the FAZ newspaper has actually uncovered a horse-trading between France and Germany, where Germany accepts these upload filters in exchange for France’s agreement to Nord Stream Gas Pipeline.”


(The President warns Members)

“Ladies and gentlemen, the most tragic fact here is that there is a new generation that will be voting for the first time in the European elections, [who] are actually learning their lessons that their protests count for nothing; that politics will disseminates lies about them, and is not going to listen to real arguments when it comes to very tough geopolitical interests. They are going to be marked by this sense of helplessness. Colleagues, we cannot conduct politics like this. This Directive should not get through unamended. It would not only be detrimental to the freedom of the internet but it will take the trust away from a whole generation of their faith in politics. They won’t believe that this Parliament is supporting their interests. This is why we should not allow Articles 11 and 13 to get through.”

[restab title="Axel Voss"]

[expand title="Click here to see transcript from Axel Voss." swaptitle="Transcript from Axel Voss"]
“… Thank you very much chair. Ladies and gentlemen, colleagues […]. This is a decisive issue; namely, to what extent can we translate our concept of copyright into the digital age? How can we adapt it to a digital age? Do we want to protect our intellectual property in the form that we’ve done so far? And what is copyright? For whom does it serve? Do we want to set up a legal framework for the internet here so that content creators are not swindled? That is the basic issue that we’re dealing with today. And we need to weigh up these issues and balance them against freedom of expression and copyright theft - those are decisive issues. Those are the issues at stake here. Do we want to allow the internet complete freedom, or do we still protect our values? I know that there has been a discussion on Article 13 which has become infamous, and everything is hanging on that Article, but I would also briefly like to speak on some of the other issues which we’ve enshrined in this report.

Firstly, we have a modern system of text and data mining. Commercial text and data mining is being implement by the report and that’s progressive, and I believe it will also be the first step worldwide in that direction. Article 12 creates a possibility that the Reprobel case, the Court of Justice ruling, that that ruling is rebalanced for those countries which are affected by that ruling, for book publishers and authors of books. For actors, for creative artists, for artists in general, we have helped them through Article 14 and following. We’ve created possibilities for them to improve a fair situation with respect to publishers, music labels etc. without creators having to go to court all the time. So again, it will improve the relationship between them. Article 11 establishes a possibility that our press publishers will have better neighbouring rights, and that’s what we’re doing here in the article. We’re only giving them a right to do something – what they do with that right is then up to them. But it establishes a more level playing field with respect to internet platforms. Because the way the internet has developed over the past few years means that if it’s on the internet people think it’s free. Then that content is used in such a way that publishers can’t monetize that content.

If you look at Article 13 there have been many allegations, or accusations, of the fact that we have created a definition where we only include those platforms which precisely know that they do use content which belongs to others, which is under copyright to others, and monetize that content. So, the question is how you can implement these rules for platforms which invite users to upload whatever they like. That means the platforms need to have a responsibility, and we want to give them that responsibility today. To deal responsibly with copyrighted content of the rightsholders, which are not those platforms, and that is the issue at stake today.

We have established a solid basis to make progress here. It would give Member States a guideline, guidelines, to implement this in law. And I think that this has been the correct approach and continues to be the correct approach to make progress - balanced progress between copyright, the digital world, and freedom of opinion. Thank you.”
[restab title="Andrus Ansip and Axel Voss"]

[expand title="Click here to see transcript from Andrus Ansip." swaptitle="Transcript from Andrus Ansip"]
Madam President, I would like to thank the honourable Members of the European Parliament for this debate. Many speakers spoke about upload filters today. To be clear, upload filters are not mentioned in the text of the directive, but as we all know they are already used by big platforms. Voting down the directive will not take away upload filters. The directive will, on the contrary, give our citizens of the right to ask for reuploads and contest removals of content that they should be able to upload. This is a major improvement on the current situation.

The vote on the copyright directive is about Europe’s message to its creators. It is simple, we care about you and we protect you so that you continue your invaluable work and contribution to our culture. Culture is what European societies are built on. It is at the source of our values and our inspiration. The ultimate beneficiaries of this directive will be Europe’s citizens.

A modernised legal environment for copyright will improve their access to European arts, entertainment and quality journalism. This vote is also about the EU’s ability to tackle the complex and important legal challenges of the online environment. We understand that there are different voices and different opinions. This is normal in such an important debate.

We have listened to the different views and respect all of them. However, we believe that the text resulting from the trilogue is balanced and delivers on our objective to modernise European copyright law.

It is time to step up and make European copyright law fit for the digital age. Thank you President, thank you Mr Voss and shadow rapporteurs, thank you honourable Members.

[expand title="Click here to see transcript from Axel Voss." swaptitle="Transcript from Axel Voss"]
“… Thank you very much chair. Some of today’s contributions to the debate have shown that the centre of this debate has got lost. This reform will not introduce censorship, it not introduce and will not restrict reasonable freedom of expression. We will be establishing legal certainty for appropriate, proportionate use of copyrighted content, and it will give a far wider array of options for ordinary users. Google, Facebook and YouTube have introduced a governance by shitstorm. They’ve launched a misinformation campaign and spent a lot of money influencing public opinion. It shows you how easy it is to use young people as a tool. What’s at stake here is our democracy. It’s whether we can get this through in the face of powerful platforms. This is a fundamental rights issue; this is about intellectual property. It’s the right to intellectual property, and also about fair compensation, remuneration for rightsholders. It is in our power today to protect and save European cultural heritage and not allow it to be exploited by tech monopolies. It is also in our power today to protect our European cultural industries. Creators need, urgently need, protection, and that’s why I’d like to ask you all to vote in favour of today’s proposal for a balanced reform.”

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[restab title="Full Transcription of Discussion" active="active"]

Transcription of the Plenary discussion on Copyright in the Digital Single Market.
Chairs: Pavel Telička & Rainer Wieland.
Transcription by Amy Thomas, Research Assistant & PhD Candidate at CREATe, The University of Glasgow.

All transcriptions are based on the English translation provided in the plenary recording, available at:

Transcriptions have been edited for length and clarity only. More specific statistics and analysis of the vote on 12 September 2018 is available via Votewatch:

View and download here (30 page pdf).[/restab]
[restab title="Andrus Ansip Response"]

18:59 [Commission response] Andrus Ansip, Vice-President of the European Commission

"I would like to thank the members of the European Parliament for this interesting debate. It’s very evident that there is a clear consensus about the need to modernise the EU copyright framework. Reform of copyright is extremely difficult to do, we all know this. There are so many interests to reconcile and the rules have direct impacts on the everyday lives of our citizens.

I think it’s good to remind ourselves that this Directive is important for the many reasons mentioned before. The European citizens care about this Directive in a very direct way. We saw this when the Commission worked on its proposal, and we have seen it leading up to this debate.

Clearly, we need to give Europeans the right kinds of copyright laws for the digital age. They deserve nothing less. And it is achievable. This is very clear to us after this debate. As mentioned before none of the proposals now on the table will destroy the internet nor freedom of speech. None of the proposals will restrain our citizens from expressing themselves or sharing their ideas with others. More specifically rest assured that article 11 will not limit access to information. On the contrary, it will ensure the survival of quality press in the digital age. And as for article 13, I think we only need targeted and balanced intervention to ensure the European creative industry can get a fair share of the value generated by its content which is nowadays mainly used online.

After today’s debate I am encouraged that all EU institutions share the common objective of ensuring a fair and thriving copyright environment in Europe. This Directive is a one of a kind opportunity to adopt copyright rules to the digital age. If we fail to start trilogue negotiations, the Directive may be pushed back several years. In this case, in the short term, there will be only one winner. Large platforms. No one else. Not creators or artists. Not the citizens. Not the researchers. Not the teachers. Not even start-ups or smaller platforms will win. And in the end, not even platforms win from fragmentation. This will be a real lose lose situation. We are committed to assist the co-legislators in the trilogue negotiations to ensure that a balanced proposal is adopted."



Prior to the plenary vote on 5 July, short speeches were given by JURI rapporteur Axel Voss and IMCO rapporteur Catherine Stihler (IMCO, the internal market committee, shares responsibility for Art. 13).

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[restab title="Axel Voss"]

"Thank you very much Chair.  We’ve all had very intensive discussions but what is it that we’re talking about with this reform?  It’s an end of the exploitation of European artists on the internet, we’re talking about the major US platforms like Google and Facebook that have been making huge profits at the cost of European creatives.  We need to prevent that and I think it is inexplicable how some people want to support this internet capitalism.

While others are calling for America first and abusing data and exploiting creatives, we should be standing at the side of our European creatives otherwise there is a risk of creative insolvency.  With these reforms we’re also talking about existing legislation, copyright and ownership ensuring that we have the right balance.  Why would we be against wanting to prevent copyright violations?  Why would we be against fair remuneration of creatives and getting these large platforms to take more responsibility?

The campaign that we’re subject to from Google, Facebook that are meeting with children of MEPs and all of this is based on lies.  There are no limits being put for individual users.   Every person can continue to set up links and carry out their uploads with legal certainty and the individuals are no longer responsible for copyright violations."[/restab]
[restab title="Catherine Stihler" active="active"]

"Thank you Mr President and colleagues.  I want to thank everyone for the work they’ve done on this important file.  We’re all united in our shared mission to protect artists and cultural diversity in Europe, and I speak as Rapporteur in the IMCO committee, which is the only committee to share joint competency on one of the most controversial articles, Article 13.

In our committee we’re able to reach a broad compromise that makes meaningful progress on the value gap while at the same time safeguarding the rights of European internet users, SMEs and start-ups.  I deeply regret that the IMCO position has not been taken into account and the JURI text does not achieve the needed balance.  There are real concerns about the effect of Article 13 and freedom of expression raised by experts ranging from the UN Special Rapporteur David Kaye to the inventor of the worldwide web, Sir Tim Berners-Lee and the real concerns voiced by our citizens.

Just yesterday I received a petition signed by almost a million people against the JURI committee mandate and although there’s consensus and I believe there is consensus about the goals behind this law, huge controversy still exists about the methods proposed.  Something’s not right here.  We owe it to the experts, stakeholders and citizens to give this directive the full debate necessary to achieve broad support.

Dear colleagues I ask you to refuse to fast track this law to allow for a broad fact-based debate in September.  Please reject the mandate and vote against the JURI proposal.

Thank you colleagues."




European Policy for Intellectual Property (EPIP) is the leading scientific association for the economics and law of Intellectual Property. The EPIP 2018 conference was held in Berlin, 4-7 September 2018, where this statement was drafted.

On Wednesday, 12 September 2018, the European Parliament will vote in plenary session on the heavily lobbied proposed Directive on Copyright in the Digital Single Market.

On 5 July, a previous plenary vote rejected the report by Axel Voss MEP, the rapporteur for the legal affairs committee JURI. The main concerns related to the effects of Article 11 that introduces a new layer of licensing into the communication of news online, and of Article 13 that introduces new obligations on online platforms that are likely to be met by filtering content uploaded to their services.

Download statement here.

29 JUNE 2018

The Copyright Directive: Misinformation and Independent Enquiry

This academic statement was released in anticipation of the plenary vote in the European Parliament on the Copyright in the Digital Single Market Directive, scheduled for 5 July, 12:00.

This latest statement attempted to address directly some of the misinformation circulating in a heavily lobbied environment. The statement rejected the following four claims as false:

  • False: The proposals will increase legal certainty
  • False: The Internet will not be filtered
  • False: There is no problem relating to freedom of expression
  • False: Memes will not be affected

The statement also assessed the following claims as misleading:

  • Misleading: Complaint and redress mechanisms will protect the interests of users
  • Misleading: Authors will receive an increased share of copyright remuneration

Click here to read statement & download pdf.


The evidence on the most contested proposals is as follows:

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[restab title="Press Publishers Right (Art.11)" active="active"]

Article 11: The proposal to introduce a new exclusive right for press publishers

There is no independent research that supports this proposal. None at all. There is scientific consensus (expressed here by over 200 European academics) that Article 11 will create very broad rights of ownership in news and other information. This will impede the free flow of information that is of vital importance to democracy. In economic terms, Article 11 is likely to favour incumbent publishing interests rather than innovative quality journalism.

A less invasive solution, improving publishers’ ability to sue, is readily available. This amendment is supported by a cross-party group of MEPs. It should be noted that journalists themselves are not in favour of the new right, and there is no evidence from countries that have introduced a similar right that revenues have reached journalists. See Bently and Kretschmer’s study for the European Parliament.

It is also evident (supported by an analysis of the policy time line) that there has been a lack of accountability in lobbying. While the European Parliament’s initial rapporteur MEP Therese Comodini Cachia (EPP) (who resigned in June 2017 to take up a seat in the Maltese parliament) reported her meetings with interested parties, the current rapporteur MEP Axel Voss (EPP) seems to keep a hidden line to German media interests. The mainstream legacy media have been reluctant to report critical voices. They have in effect muzzled their own journalists. Not a good sign for a proposal that is to serve a pluralist press.

Research relating to Article 11 can be found here.

[restab title="Text & Data Mining (Art.3)"]

Article 3: An exception for text-and-data mining limited to research organisations

The goal of the proposed exception for text-and-data mining is laudable. Data analytics, including applying machine learning (AI) techniques, is a fast moving technology. Legal certainty to stimulate research and innovation should be welcome.

There is academic consensus that the proposed exception falls short. Extracting the information contained in copyright works should not be a copyright infringement in the first place. Text-and-data mining does not use the work as a work. See also Opinion of the European Copyright Society. Therefore the proposed exception should simply clarify that ALL who have lawful access to a work can perform text-and-data mining without asking for further permission.

Instead, Article 3 offers complicated wording, limiting both the beneficiary and the purpose, and offering no safeguards against technical obstacles. The evidence suggests that this intervention will do nothing to increase European engagement with data analytics. Countries with open, flexible exceptions capable of responding to new technologies will be better off. See Geiger, Frosio, Bulayenko (2018): The Exception for Text and Data Mining (TDM) in the Proposed Directive on Copyright in the Digital Single Market.

Research relating to Article 3 can be found here.

[restab title="Filtering (Art.13)"]

Article 13: New obligation to obtain licences for content uploaded by users, or prevent the availability of such content by filtering

The proposed filtering obligation for online services to which users upload content is designed to increase the bargaining power of rightholders versus intermediaries, such as YouTube (owned by Google) or Facebook. In a discourse dominated by the music industry, this has been termed as a provision closing the “value gap”.

There is a case for regulating the power of online platforms but we first need a correct diagnosis why bargaining for some rightholders has become more difficult. The music industry has been perfectly able to negotiate licences with services such as Spotify and Apple. The fact that less money has found its way to musicians while the overall music market is increasing points to a different “gap”. This is where interventions may need to be examined. Academics agree that Article 14 requiring greater transparency of information about the exploitation of works and performances is a promising start. There is evidence that points in different directions regarding equitable remuneration rights for authors and mechanisms for the regulation of contracts: IViR (2016); Bently & Kretschmer (2017); Xalabarder (2018).

In the case of user-generated content (Art. 13), it is a mistake to rely on the specific needs of parts of the music industry (an effective lobby) to change laws without understanding past interventions. In the EU, we have had a liability regime for Internet intermediaries for nearly 20 years that is open to empirical examination. Under the Directive on Electronic Commerce (2000/31/EC) hosts of content uploaded by users will be liable only upon obtaining knowledge of the content and its illegality.  This has led to the introduction of so-called “notice and takedown” practices that have increased dramatically in complexity with the arrival of algorithmic takedown requests and Google’s ContentID technology. Despite the enormous potential economic and cultural impacts of this regulatory approach, we know surprisingly little about the effects of the current regime ("This video is unavailable", Erickson & Kretschmer 2018).

When the content to be removed is an unambiguous piratical copy, automated systems make sense (as long as the takedown request is accurate and valid, a separate problem discussed by Karaganis, Urban, Schofield). If human judgment is needed to assess the validity of a takedown request, for example in the case of content that might benefit from a statutory copyright exception, filtering obligations will make an existing problem worse.

Article 13 does not reflect the principles that led the Court of Justice of the European Union to develop its case law against general monitoring. See Senftleben, Angelopoulos, Frosio, Moscon, Peguera and Rognstad (2017): The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform.  In economic terms, the proposal threatens the benefits of user-led innovation for cultural practices that are rapidly changing.

Under these circumstances, the right regulatory response is caution. The obligation to act upon constructive knowledge (established under the e-Commerce Directive) should not be replaced by a filtering obligation.

Research relating to Article 13 can be found here.




Two open letters from European Research Centres were sent to MEPs and members of the IP working party of the Council of the European Union, dated 26 April 2018 and 24 February 2017.

A Statement signed by over 200 European academics against the press publishers’ right was published on 25 April (and endorsed by the European Copyright Society).


CREATe's Copyright Evidence portal catalogues more than 600 empirical studies related to copyright policy:  Copyright Evidence Wiki

Third academic statement "in advance of the final Plenary vote" (26 March 2019)

Second academic statement "EPIP" (10 September 2018)

First academic statement "Misinformation and Independent Enquiry" (29 June 2018)

[expand title="Second Open Letter to MEPs & the EU Council(26 April 2018)" swaptitle="Second Open Letter to MEPs & the EU Council (26 April 2018)"]

The Copyright Directive is failing

(Open Letter to Members of the European Parliament and the Council of the European Union)

Amsterdam, Barcelona, Berlin, Brno, Cambridge, Florence, Glasgow, München, Paris, Strasbourg, Tilburg, Torino, Travna

We are independent legal, economic and social scientists from leading research centres across Europe.

Many of us participated in the public debate surrounding the Proposed Directive on Copyright in the Digital Single Market (COM(2016) 593 final), contributing studies, scholarly articles, comments and open letters [1]. We did this work in the belief that it is the responsibility of academics to offer independent expertise in a complex and contested area of policy making.

We acknowledged from the beginning that this was a heavily lobbied field, where there was a danger that the interests of small innovating firms, of non-organised creators and of consumers would not be heard. We therefore repeatedly recommended that the legislative process should be conducted transparently and that the public should be offered proper evidence for review.

We note with dismay that the latest revisions to the Proposed Directive are being negotiated behind closed doors. Independent evidence is ignored in response to heavy lobbying. “Compromise” texts are now being drafted both in the Council of the European Union [2] and in the European Parliament [3]. They are destined for the agenda of the EU Council (Competitiveness Council, 28-29 May 2018) and are scheduled to be voted in the JURI Committee on 21-22 June 2018.

There is scientific consensus that the proposed exception for text-and-data-mining in Art. 3 will not achieve its goal to stimulate innovation and research if restricted to certain organisations, that the proposals for a new publishers’ right under Art. 11 will favour incumbent press publishing interests rather than innovative quality journalism, and that the proposals for Art. 13 threaten the user participation benefits of the e-Commerce Directive (2000/31/EC) which shared the responsibility for enforcement between rightholders and service providers.

When the Commission’s Proposed Directive was published on 14 September 2016, there were grounds for optimism. The Committees of the European Parliament did their job in scrutinising the proposals. In particular the draft report of MEP Catherine Stihler (S&D) for the Internal Market committee IMCO recognised the dangers of Art. 13 (where it may undermine the innovation benefits of the e-Commerce Directive);  the report by MEP Michał Boni (EPP) for the Civil Liberties committee LIBE emphasised the Charter of Fundamental Rights and that Art. 13 should not impose a general monitoring obligation; the report by MEP Zdzisław Krasnodębski (ECR) for the Industry committee ITRE drew attention to the narrow scope of the proposed Art. 3 exception for text-and-data-mining.

In the lead Legal Affairs committee JURI, rapporteur Therese Comodini Cachia (EPP) produced a balanced draft report, published on 10 March 2017 [4] that replaced the deeply problematic new publishers’ right in Art. 11 with a presumption that gives press publishers standing to sue. Comodini’s report also opened the text-and-data-mining exception under Art. 3 to all, and clarified the obligations on service providers under Art. 13.

Comodini resigned as a MEP in June 2017 to take up a seat in the Maltese Parliament and Axel Voss, a German MEP from the EPP Group, was appointed rapporteur. The legislative drafts that have since emerged from his office as well as from the Bulgarian Council presidency (since January 2018) pay lip service to authors’ interest but respond in effect to the agenda of powerful corporate interests.

There is a tremendous amount of noise and misinformation. “Fake news” is dressed as a copyright issue (which can only be characterised as cynical), and the misleading rhetoric of a “value gap” clouds the true nature of the issues for online platforms.

Comodini’s draft report for the JURI Committee in our view still offers the most workable basis for progress because it was based on wide and transparent consultation, taking into account scientific evidence.

If the legislation progresses in the form proposed by the recent drafts of the Bulgarian Presidency and JURI rapporteur Voss, we call on you to reject the Proposed Directive altogether. It will not serve the public interest.

The Copyright in the Digital Single Market Directive is now failing its stated goals to improve choice, access and fairness in the digital environment.

Download the letter as pdf



[expand title="Second Open Letter: References (26 April 2018) " swaptitle="Second Open Letter: References (26 April 2018)"]

[1] Academic contributions since 2017

(studies published prior to February 2017 are referenced in Open Letter #1)

Lionel Bently, Martin Kretschmer & Technopolis Consultants  (2017) The position of press publishers and authors & performers in the copyright directive, Study commissioned by European Parliament, Policy Department C: Citizens’ Rights and Constitutional Affairs (100pp):

Better Regulation for Copyright: Academics meet Policy Makers (2017), with contributions by Rosati, Gompel, Höppner, Stalla-Bourdillon, Mazziotti, Rendas, Ramalho, Hugenholtz. Proceedings published by Greens|EFA & Southampton University:

Kristofer Erickson and Martin Kretschmer (2018) ‘This Video is Unavailable’: Analyzing Copyright Takedown of User-Generated Content on YouTube, Journal of Intellectual Property, Information Technology and E- Commerce Law (JIPITEC), 9(1). Available at SSRN:

Reto M. Hilty and Valentina Moscon (eds.) (2017) Modernisation of the EU Copyright Rules - Position Statement of the Max Planck Institute for Innovation and Competition (Research Paper, No. 17-12, 208pp):

Christophe Geiger, Giancarlo Frosio and Oleksandr Bulayenko (2017) Opinion of the CEIPI on the European Commission's Proposal to Reform Copyright Limitations and Exceptions in the European Union. Available at SSRN: (published version: “The EU Commission’s Proposal to Reform Copyright Limitations: A Good but Far Too Timid Step in the Right Direction”, European Intellectual Property Review 2018, 4)

Christophe Geiger, Giancarlo Frosio, Oleksandr Bulayenko (2018) The Exception for Text and Data Mining (TDM) in the Proposed Directive on Copyright in the Digital Single Market, Legal Aspects, Study commissioned by European Parliament, Policy Department for Citizens' Rights and Constitutional Affairs for JURI Committee (29pp):

Martin Husovec (2017) Compromising (on) the Digital Single Market? A Quick Look at the Estonian Presidency Proposal(s) on Art 13, Kluwer blog (08/09/2017) available at

Matthias Leistner and Axel Metzger (2017) The EU Copyright Package: A Way Out of the Dilemma in Two Stages,  International Review of Intellectual Property and Competition Law (IIC) 48(4), pp 381–384

Thomas Margoni (2018) The Text and Data Mining exception in the Proposal for a Directive on Copyright in the Digital Single Market: Why it is not what EU copyright law needs. CREATe blog (25/04/18) available at:

Jan Nordemann (2017) Liability of Online Service Providers for Copyrighted Content – Regulatory Action Needed?, Study commissioned by European Parliament, Policy Department A: Economic and Scientific Policy (30pp):

Marco Ricolfi, Raquel Xalabarder, Mireille van Eechoud (2018) Academics against Press Publishers’ Right, Statement from 169 EU academics:

Giovanni Sartor (2017) Providers Liability: From the eCommerce Directive to the future, Study commissioned by European Parliament, Policy Department A: Economic and Scientific Policy (36pp):

Martin Senftleben, Christina Angelopoulos, Giancarlo Frosio, Valentina Moscon, Miquel Peguera and Ole Andreas Rognstad (2017) The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform (24pp). Available at SSRN:

Raquel Xalabarder (2017) ‘CREATe Public Lectures on the Proposed EU Right for Press Publishers’, European Intellectual Property Review 39(10): 607-622. Available at SSRN:


[2] Bulgarian Presidency draft compromise proposal (13 April 2018):

[3] Rapporteur Voss draft compromise proposal (28 March 2018):

[4] Rapporteur Comodini draft report for JURI (10 March 2017):



[expand title="Second Open Letter: Full List of Signatories (26 April 2018)" swaptitle="Second Open Letter: Full List of Signatories (26 April 2018)"]

  • CPIL, University of Cambridge, UK

Professor Lionel Bently, Director, Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge, United Kingdom

Dr Henning Grosse Ruse-Khan, Co-Director CIPIL; Dr Christina Angelopoulos; Professor Bill Cornish; Dr. Jennifer Davis

  • CEIPI, University of Strasbourg, France

Professor Christophe Geiger, Director, Centre d'Etudes Internationales de la Propriété Intellectuelle (CEIPI)

Dr Giancarlo Frosio; Oleksandr Bulayenko

  • CIPPM Bournemouth University, United Kingdom

Professor Maurizio Borghi, Director, Centre for IP Policy & Management (CIPPM)

Professor Dinusha Mendia; Co-Director CIPPM; Professor Ruth Towse, Professor of the Economics of Creative Industries & CREATe Fellow in Cultural Economics

  • University of Copenhagen, Denamark

Professor Thomas Riis; Professor Jens Schovsbo; Dr Sebastian Felix Schwemer Centre for information and Innovation Law (CIIR)

  • CREATe, University of Glasgow, Scotland, UK

Professor Martin Kretschmer, Director, RCUK Copyright Centre (CREATe), University of Glasgow, and Braudel Fellow, European Institute, Florence, Itlay

Professor Lillian Edwards, Deputy Director CREATe, Professor of E-Governance, Strathclyde University

Professor Sayantan Ghosal, Professor of Economics, Adam Smith Business School, University of Glasgow

Dr. Elena Cooper; Dr Kris Erickson; Dr Thomas Margoni; Dr Andreas Rahmatian; Dr Sukhpreet Singh

  • European University Institute, Florence, Italy

Professor Peter Drahos, Professor of Law and Governance

Professor Giovanni Sartor, University of Bologna and EUI; Kasper Drazewski

  • European University Viadrina, Frankfurt (Oder), Germany

Professor Katharina de la Durantaye, Chair of Private Law and Media Law

  • Goethe Universität, Frankfurt am Main, Germany

Professor Alexander Peukert, Chair in Civil and Intellectual Property Law

  • Hanken School of Economics, Helsinki, Finland

Professor Niklas Bruun, Director, IPR University Center

Professor Nari Lee, Professor of Intellectual Property Law

  • Hamboldt-Universität Berlin, Germany

Professor Axel Metzger, Chair in Civil and Intellectual Property Law

  • IViR, University of Amsterdam, Netherlands

Professor Nico van Eijk, Director, Professor of Media and Telecommunications Law and Director of the Institute for Information Law (IViR)

Professor P. Bernt Hugenholtz, Professor of IP Law and former Director, Institute for Information Law

Professor Mireille van Eechoud; Dr Stef van Gompel; João Pedro Quintais; Assoc. Professor (economics) Joost Poort

  • Max Plank Institute for Innovation and Competition, München, Germany

Professor Reto Hilty, Director, Max Plank Institute for Innovation and Competition

Professor Josef Drexl, Director Intellectual Property and Competition Law

Professor Dietmar Harhoff, Director Innovation and Entrepeneurship Research

Dr. Valentina Moscon, Senior Research Fellow

  • Masaryk University, Brno, Czech Republic

Dr. Radim Polčák, Head of the Institute of Law and Technology, Faculty of Law

Dr. Matěj Myška, Deputy Head ILT

  • Nexa, Politechnio di Torino, Italy

Professor Juan Carlos De Martin, Co-Director, Center for Internet & Society (NEXA), Professor Marco Ricolfi, Co-Director NEXA

  • Universitat Oberta de Catalunya (UOC), Barcelona, Spain

Professor Raquel Xalabarder, Chair of Intellectual Property
Assoc. Professor David Megías, Director of the Internet Interdisciplinary Institute (IN3)
Assoc. Professor Miquel Peguera

  • OIPRC, University of Oxford, UK

Assoc. Professor Dev Ganjee, Director, Oxford Intellectual Property Research Centre (OIPRC)

  • Queen Mary IP Research Institute, London, UK

Professor Guido Westkamp, Professor of Intellectual Property and Comparative Law

  • Adam Mickiewicz University, Poznań, Poland

Dr. Rafal Sikorski, Professor of Law, Faculty of Law and Administration

  • Universidade Católica Portuguesa, Portugal

Tito Rendas, Lecturer in Copyright Law

  • SciencesPo Paris, France SciencesPo, Paris, France

Professor Séverine Dusollier, School of Law, SciencesPo Paris, France

  • Trinity College Dublin, Ireland

Assoc. Professor Eoin O'Dell

  • Tilburg University, Netherlands

Professor Ronald Leenes, Professor in Regulation of Technology, Tilburg Institute for Law, Technology and Society (TILT)

Dr Martin Husovec, TILT & Tilburg Law and Economics Center (TILEC)

Professor Eleni Kosta (TILT); Dr. Maurice Schellekens (TILT)

Dr. Lapo Filistrucchi (TILEC); Dr. Jens Prüfer (TILEC) ; Dr. Florian Schuett (TILEC)

  • University of Travna, Slovakia

Dr. Zuzana Adamova, Head of Intellectual Property and Information Technologies Law Institute

  • University of Trento, Italy

Assoc. Professor Roberto Caso,  Assoc. Professor of Comparative Private Law, Co-director of LawTech Group

  • Vrije Universiteit Amsterdam, The Netherlands

Professor Arno Lodder, Professor of Internet Law, Centre for Law and Internet (CLI);

Professor Martin Senftleben, Professor of Intellectual Property, Centre for Law and Internet (CLI)



[expand title="First Open Letter to MEPs & the EU Council (24 February 2017)" swaptitle="First Open Letter to MEPs & the EU Council (24 February 2017)"]

EU Copyright Reform Proposals Unfit for the Digital Age
Amsterdam, Berlin, Cambridge, Glasgow, München, Paris, Strasbourg, Tilburg, Torino
24 February 2017
We are independent legal, economic and social scientists, and represent the leading European centres researching intellectual property and innovation law.

It is likely that you personally are being lobbied with regard to a complex Copyright Reform package that extends to 3 Regulations and 2 Directives (supported by over 400 pages of Impact Assessments).

The proposals say the right words on the cover: “EU Copyright Rules Fit For The Digital Age. Better choice & access to content online and across borders. Improved copyright rules for education, research, cultural heritage and inclusion of disabled people. A fairer online environment for creators and the press.”

While the Proposed Directive on Copyright in the Digital Single Market (COM(2016) 593 final) contains a number of reasonable, common sense measures (for example relating to cross border access, out-of-commerce works, and access for the benefit of visually impaired people), there are two provisions that are fundamentally flawed. They do not serve the public interest.

Article 11 seeks to create an additional exclusive right for press publishers, even though press publishers already acquire exclusive rights from authors via contract. The additional right will deter communication of news, obstruct online licensing, and will negatively affect authors.

Article 13 indirectly tries to amend the E-Commerce Directive (2000/31/EC) that arranges the liability of online intermediaries for user generated content into a shared responsibility of rights holders and service providers. The proposals will hinder digital innovation and users’ participation.

With respect to both provisions, independent empirical evidence has been ignored, consultations have been summarised in a misleading manner, and legitimate criticism has been labelled as anti-copyright. We urge you to look inside the copyright package and seek out independent expertise.

In order to facilitate debate, we have produced two short appendices to this letter, setting out the key flaws of the proposals, and listing sources of evaluation. There is independent scientific consensus that Articles 11 and 13 cannot be allowed to stand.

First signatories include academics of the following Research Centres:

Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge, United Kingdom;
Centre d’Etudes Internationales de la Propriété Intellectuelle (CEIPI), University of Strasbourg, France;
RCUK Copyright Centre (CREATe), University of Glasgow, Scotland, UK;

Chair for Civil and Intellectual Property Law, Humboldt University, Berlin, Germany;
Institute for Information Law, University of Amsterdam, Netherlands;
Max Planck Institute for Innovation and Competition, Munich, Germany;
Center for Internet & Society (NEXA), Politecnico di Torino, Italy;
Universitat Oberta de Catalunya (UOC), Barcelona, Spain

SciencesPo Paris, France;
Tilburg Institute for Law, Technology and Society & Tilburg Law and Economics Center, University of Tilburg, Netherland

The full list of signatories can be found at the end of this page.

Download the letter as pdf.



[expand title="First Open Letter: Full List of Signatories (24 February 2017)" swaptitle="(First Open Letter: Full List of Signatories (24 February 2017)"]

Open Letter: Full List of Signatories

First signatories (24 February 2017)

  • CIPIL, University of Cambridge, UK

Professor Lionel Bently, Director, Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge, United Kingdom

Dr. Henning Grosse Ruse-Khan, Co-Director CIPIL; Dr. Christina Angelopoulos;
Professor Bill Cornish

  • CEIPI, University of Strasbourg, France

Professor Christophe Geiger, Director, Centre d’Etudes Internationales de la Propriété Intellectuelle (CEIPI)

Dr. Giancarlo Frosio; Oleksandr Bulayenko

  • CREATe, University of Glasgow, UK

Professor Martin Kretschmer, Director, RCUK Copyright Centre (CREATe), University of Glasgow, Scotland, United Kingdom [drafter]

Professor Lilian Edwards, Deputy Director CREATe, Professor of E-Governance, Strathclyde University

Professor Sayantan Ghosal, Professor of Economics, Adam Smith Business School, University of Glasgow

Professor Ruth Towse, Professor of the Economics of Creative Industries, Bournemouth University & CREATe Fellow in Cultural Economics;

Dr. Elena Cooper; Dr. Kris Erickson; Dr. Thomas Margoni; Dr. Andreas Rahmatian; Dr. Sukhpreet Singh

  • Humboldt-Universität Berlin, Germany

Professor Axel Metzger, Chair in Civil and Intellectual Property Law

Jun. Professor Katharina del la Durantaye

  • IViR, University of Amsterdam, Netherlands

Professor P. Bernt Hugenholtz, Director, Institute for Information Law

Professor Mireille van Eechoud

Dr. Stef van Gompel

Dr. Joost Poort, Associate Professor (economics)

  • Max Planck Institute for Innovation and Competition, Munich, Germany

Professor Reto Hilty, Director, Max Planck Institute for Innovation and Competition

Professor Josef Drexl, Director Intellectual Property and Competition Law

Professor Dietmar Harhoff, Director Innovation and Entrepreneurship Research

  • Nexa, Politechnio di Torino, Italy

Professor Juan Carlos De Martin, Co-Director, Center for Internet & Society (NEXA)

Professor Marco Ricolfi, Co-Director NEXA

  • Universitat Oberta de Catalunya (UOC), Barcelona, Spain

Professor Raquel Xalabarder, Chair of Intellectual Property

  • SciencesPo, Paris, France

Séverine Dusollier, Professor, School of Law, SciencesPo Paris, France

  • Tilburg University, Netherlands

Professor Panos Delimatsis, Director, Tilburg Law and Economics Center (TILEC)

Dr. Martin Husovec (TILT & TILEC) [drafter]

Professor Eleni Kosta, Professor Ronald Leenes, Dr. Maurice Schellekens (TILT)

Professor Panos Delimatsis, Professor Pierre Larouche, Dr. Lapo Filistrucchi, Dr. Jens Prüfer, Dr. Florian Schuett (TILEC)

New signatories

Dr. Eoin O'Dell, Associate Professor of Law, Trinity College Dublin

Dr. Begoña Gonzalez Otero, Academic Dean of EU Business School Munich and affiliated researcher of the Instituto de Derecho Industrial, Universidad de Santiago de Compostela

Dr. Sabine Jacques, Lecturer, School of Law, University of East Anglia

Professor Fiona Macmillan, Corporation of London Professor of Law, Birkbeck University of London

Miquel Peguera, Associate Professor, Universitat Oberta de Catalunya, Barcelona

João Pedro Quintais, Postdoctoral Researcher, IViR, University of Amsterdam, Netherlands

If you support the Open Letter and wish to add your name, please send an e-mail to the CREATe hub.



[expand title="Appendix I (Independent Studies and Opinions & Sources of Data): What is wrong with Article 11? (24 February 2017)" swaptitle="Appendix I (Independent Studies and Opinions & Sources of Data): What is wrong with Article 11? (24 February 2017)"]
Proposed Directive on Copyright in the Digital Single Market: Article 11
Protection of press publications concerning digital uses

The Proposal aims to change the legal framework for the online use of news, by creating a new exclusive right for press publishers. Any statement that this intervention will not affect the communication of information in a democratic society (and thus the right to freedom of expression) is seriously misleading. While the motivation for the proposed new right is to help publishers in a time of technological change, the consequence will be a fundamental change in the copyright treatment of news. The onus must be on the proponents of the new right to present independently verifiable evidence on the effects and the proportionality of the intervention (including an assessment of the lack of alternatives). This is entirely missing from the Commission’s package, a scandalous omission.

There is consensus, as Recital 31 puts it, that “[a] free and pluralist press is essential to ensure quality journalism and citizens’ access to information”. But it is wrong to present copyright as the solution. Exclusive rights cut two ways. They incentivise and they prevent. Already the Berne Convention for the Protection of Literary and Artistic Works (1886), the ‘mother’ of the international copyright system, explicitly permits free press summaries, recognising the sensitive status of information and news. No evidence is presented by the Commission that restricting the communication of news would address the decline in revenues from advertising and subscription of many traditional newspapers. Will citizens read more, and read more European sources?

The second main argument offered by the Commission is that there is nothing problematic or unusual under copyright law to recognise investment through a related right (Recital 32: “the organisational and financial contribution of publishers”). This too is misleading. The contribution of a producer of a phonogram or the producer of an audio-visual recording is very different from a publisher, even a news publisher. Through employment contracts or contracts with free-lance journalists, press publishers already acquire the authors’ copyright. So the proposal in effect establishes a double layering of rights for the same creation.

If the real issues relate to licensing and enforcement (e.g. proof of ownership), the answer needs to focus on licensing and enforcement rather than on creating new rights. Article 5 of the Enforcement Directive (2004/48/EC) could be amended to create a presumption that a press publisher is entitled to bring proceedings to enforce the copyright in any article or other item appearing in a journal of which it is the identified publisher.

It is false to claim that the proposed new right for press publishers will have no effect on authors who are protected under the “no prejudice” clause in Art. 11(2) (and Recital 35). In the public consultation, journalists and photographers expressed their concern that by granting publishers a related right, the freedom to republish the work (under contract or as a matter of national law), would be even more difficult to exercise. From a user perspective, a service that wishes to republish works covered by the new right will have to approach whom? If the pie does not get bigger, the authors’ share will become smaller as additional rights are introduced into play.

The proposal adds another layer of rights that new services and innovators have to clear in all Member States. This will hinder European innovation compared to the rest of world. The empirical evidence from the introduction of ancillary rights for press publishers in Germany (2013) and Spain (2014) indicates that big firms can adjust their business model, pay licence fees or negotiate free licences. The innovation effects on independent news services and start-ups are not assessed by the Commission.

There are many technical issues around the drafting language of Article 11. The term of 20 years appears to apply retrospectively, and is never justified. The subject matter is defined very broadly, covering professional publications, blogs and websites. Despite Recital 33 stating that “this protection does not extend to acts of hyperlinking which do not constitute communication to the public” (reasserting case law of the European Court of Justice), the recitals and explanatory documents state the intention to make aggregators, search engines and social media pay. It is unclear for what activity. Non-linking digital uses, such as scanning, indexing, and text-and-data-mining may become a target. There are potential consequences for open data and open access policies. It is no surprise that academic publishers are taking a close interest in the Article.

Article 11 is fundamentally misconceived, and should be removed from the Proposed Directive.


Independent studies and opinions

Sources of data



[expand title="Appendix II (Independent Studies and Opinions & Sources of Data): What is wrong with Article 13? (24 February 2017)" swaptitle="Appendix II (Independent Studies and Opinions & Sources of Data): What is wrong with Article 13? (24 February 2017)"]

Proposed Directive on Copyright in the Digital Single Market: Article 13

Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users

The Proposal aims to change the legal framework for online use of copyright works. Without acknowledging it and contradicting the results of the public consultation, it reverses the allocation of responsibilities between rightsholders and service providers that was adopted by the European legislator in the E-Commerce Directive (2000/31/EC).

The E-Commerce Directive had two main goals. First, it was to support the economic growth of digital services relying on user-generated content by providing them with legal certainty. Second, it was to legislate for rapid, reliable and proportionate enforcement of copyright and other rights.

The resulting mechanism adopted for hosting services, known as “notice and takedown”, splits the responsibility and costs associated with preventing copyright infringements between rightsholders and intermediaries. It does so by making a host of content uploaded by users liable only upon obtaining knowledge of the content and its illegality. As a result, while rightsholders bear the burden of identifying and notifying infringements, intermediaries oversee verification and subsequent takedown of the notified content.

The proposed Article 13 attempts to change this by creating an obligation on intermediary services to take “appropriate and proportionate measures to ensure protection of works or other subject-matter, such as implementing effective technologies” (Recital 38). The aim is to force platforms into licensing agreements that close the so-called “value gap” between the benefits platforms derive from hosting user uploaded content and the money paid to rightsholders of that content.

The Proposal is poorly drafted. It is unclear if it imposes a novel filtering obligation only on platforms with existing licensing agreements, or on all platforms regardless of such agreements. In any case, Article 13 avoids answering the central question: when and on what legal grounds should platforms pay for their users’ content?

But most importantly, Article 13 is not based on any assessment of the consequences of the intervention that conforms to “better regulation principles” agreed by Commission, Parliament and Council: a duty to strive “for simple, evidence-based, predictable and proportionate rules that are fit for purpose and deliver maximum benefits to citizens and businesses” (Jean-Claude Juncker, State of the Union Address 2016).

In particular, the Commission’s proposals take the “value gap” as given as a rationale for intervention. The idea that the creation of value should lead automatically to transfer or compensation payments has no scientific basis. The concept was invented by the music industry in 2006, initially as a “value recognition right” in the copyright levy debate. This led quickly to reports commissioned from economic consultants that confirm the views of the commissioners. It is disturbing that the European legislator now appears to take the concept for granted. The value gap language also obfuscates the legitimate goal of improving the economic positions of creators.

Online service providers that rely on user generated content not only include large multinational companies, such as YouTube or Facebook. There are many European platforms run by SMEs falling into the same category. Innovative companies are the engine of European growth and an important source of cultural diversity. They will be affected by Article 13 in unpredictable ways. We need to know how.

During the scrutiny of this proposal in Parliament and in the Council, the following questions need to be asked: (1) why improving notice and takedown procedure is not sufficient; (2) how expensive and available is the crucial filtering technology; (3) how precise is it; (4) can Internet start-up companies afford it; (5) which services are likely to be affected (e.g. cloud hosts, social media, news aggregators, wikis); (6) will the new obligations raise barriers to entry; (7) if so, for which markets, and with what consequences for European consumers and innovators; (8) will new licensing agreements benefit creators, and why; (9) how effective are counter-notice measures in preventing over-blocking of legitimate content; (10) will there be any systematic impact on freedom of expression; and (11) how does the European Commission plan to assure public oversight of these measures.

The Proposal appears to require private companies to monitor their customers by using unspecified filtering technologies without any public oversight. It appears to encourage value transfer arrangements without considering innovation, consumer and cultural effects.

Article 13 needs radical reform that may not be achievable through amendments within its current structure. We would advise removing the Article from the Proposed Directive, and focussing attention on improving the procedure for “notice and takedown”.


Independent studies and opinions

Sources of data



[expand title="Earlier Contributions " swaptitle="Earlier Contributions"]
CREATe’s earlier contributions to the EU Copyright reform debate include the following papers and policy submissions:

A full list of interventions is available here:


This resource has been supported by AHRC grant "Unlocking co-creative possibilities: CREATe follow-on engagement" (AH/P013341/1) and Kretschmer's Fernand Braudel fellowship at the European University Institute.

Summaries of research: Martin Kretschmer
Timeline: Amy Thomas
Letter coordination: Martin Kretschmer, Martin Husovec, Lionel Bently
Design and dissemination: Pete Bennett, Thomas Margoni, Kerry Patterson, Sukhpreet Singh
Graphics: Davide Bonazzi/Copyright User

Suggested citation:
EU Copyright Reform: Evidence on the Copyright in the Digital Single Market Directive. CREATe Centre: University of Glasgow.
Please include the date when the resource was accessed.