EU Copyright Reform


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 applying to new digital expressions such as memes and parodies). 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.


INTRODUCTION

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) will vote on the proposed Copyright Directive on 20 June, 10:00 am. A graph by LIBER of 4 June indicates the current timeline.

Image Source

It is extremely rare for a later plenary vote to overturn the lead committee’s position. So the destiny of the controversial directive may be settled shortly. 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.

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.

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

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).


SUMMARY OF THE EVIDENCE

The evidence on the most contested proposals is as follows:


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 to 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).


OPEN LETTERS

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).

FIRST OPEN LETTER
SECOND OPEN LETTER

Published 24 February 2017, citing 19 independent studiesPublished 26 April 2018, citing 14 independent studies
The first Open Letter (see here) offers a comprehensive review of independent evidence relating to Article 11 (creating a new exclusive right for press publishers) and Article 13 (changing the liability regime for online intermediaries relating to user generated content).The second Open Letter (see here) identifies a scientific consensus around the benefit of a broader exception for TDM; the problematic aspects of the press publishers’ right, and the threat posed by the filtering obligations for online intermediaries.

TIMELINE OF DEVELOPMENTS


PROPOSAL AIMS & OPINIONS FROM EU COMMITTEES

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.


EMPIRICAL STUDIES FOR COPYRIGHT POLICY

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


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

 

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):
http://www.europarl.europa.eu/RegData/etudes/STUD/2017/596810/IPOL_STU%282017%29596810_EN.pdf

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:  https://juliareda.eu/wp-content/uploads/2017/09/2017-09-06_Better-Regulation-for-Copyright-Academics-meet-Policy-Makers_Proceedings.pdf

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: https://ssrn.com/abstract=3144329

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): https://www.ip.mpg.de/en/projects/details/modernisation-of-european-copyright-rules.html

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: https://ssrn.com/abstract=3053983 (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): http://www.europarl.europa.eu/RegData/etudes/IDAN/2018/604941/IPOL_IDA(2018)604941_EN.pdf

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 http://copyrightblog.kluweriplaw.com/2017/09/08/compromising-digital-single-market-quick-look-estonian-presidency-proposals-art-13/

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: https://www.create.ac.uk/blog/2018/04/25/why-tdm-exception-copyright-directive-digital-single-market-not-what-eu-copyright-needs/

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): http://www.europarl.europa.eu/RegData/etudes/IDAN/2017/614207/IPOL_IDA(2017)614207_EN.pdf

Marco Ricolfi, Raquel Xalabarder, Mireille van Eechoud (2018) Academics against Press Publishers’ Right, Statement from 169 EU academics: https://www.ivir.nl/academics-against-press-publishers-right/

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): http://www.europarl.europa.eu/RegData/etudes/IDAN/2017/614179/IPOL_IDA(2017)614179_EN.pdf

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: https://ssrn.com/abstract=3054967

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: https://ssrn.com/abstract=3050575

 

[2] Bulgarian Presidency draft compromise proposal (13 April 2018): http://data.consilium.europa.eu/doc/document/ST-7927-2018-INIT/en/pdf

[3] Rapporteur Voss draft compromise proposal (28 March 2018):
https://juliareda.eu/wp-content/uploads/2018/03/voss11.pdf

[4] Rapporteur Comodini draft report for JURI (10 March 2017): http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-601.094+01+DOC+PDF+V0//EN&language=EN

 

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)

 

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.

 

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.

 

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

 

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

 

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: https://www.create.ac.uk/policy-responses/


Credits

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: Kerry Patterson, Sukhpreet Singh, Pete Bennett, Thomas Margoni
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. https://www.create.ac.uk/policy-responses/eu-copyright-reform/
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