Back in April we published our list of the 10 worst and the 5 best amendments to Felix Reda’s draft report on the implementation of the InfoSoc Directive. Tomorrow the Legal Affairs committee (JURI) of the European Parliament will vote on these amendments to the draft report. In light of the upcoming vote and given that Felix Reda has just published the final voting list – including the compromise amendments – it is time for one last round of analysis.
As the name implies, compromise amendments are amendments the different political groups have agreed on as replacements of sets of (often contradictory) amendments related to a specific section of the draft report. Given that they reflect a partial consensus among some of the political groups, they are relatively likely to be adopted. If a compromise amendment (AMC) is adopted, the individual amendments that they replace are automatically rejected. If a CAM is rejected then all original amendments will be voted on individually.
In the following we are taking a quick look at the compromise amendments that deal with the issues we’ve previously highlighted. If you haven’t done so already, you may want to read our initial analysis first.
The Good
Three of our five best amendments have found their way into compromise amendments: AM 264 – which clarifies that what is in the public domain must stay in the public domain (in line with our policy recommendation #5 and with the Europeana Public Domain Charter) – has been subsumed into AMC 6, making it much more likely to be adopted. Having this compromise amendment adopted would be a significant win for the public domain.
The same is true for AMC 23, which would override AM 535 that we featured among our list of 5 best amendments. By adopting CAM 23 the report would include language highlighting that the effective exercise of exceptions or limitations – and access to Public Domain works – must not be limited by technological or contractual means.
From our point of view both of the above compromise amendments should be voted in favor during Tuesday’s vote. The same is true for AM 348 (proposing an exception allowing online access to out-of-commerce works in the collections of cultural heritage institutions) and AM 266 (which encourages the registration of protected works). Both of these amendments will be voted on separately on Tuesday.
While it wasn’t featured in our initial list, AMC 20 – which proposes language that calls for the Commission to assess the feasibility of creating an exception for the electronic lending of books by libraries (coupled to fair remuneration of authors) – is a welcome surprise. In addition to addressing e-lending, this AMC proposes a new section that calls on the Commission to  provide more room for cultural heritage institutions to digitize the works in their collections. Both issues are crucial in order to allow Europe’s cultural heritage sector to better serve their audiences in the digital environment.
The Not-so-bad
A number of the issues that we had identified as part of our list of the 10 worst amendments are covered by compromise amendments. Somewhat surprisingly, a number of these compromise amendments neutralize some of the most problematic aspects that we had identified in our original list.
AMC 15 proposes to remove the paragraph in Felix Reda’s report that deals with the right to link. While well-intended, the original paragraph–which stressed that linking should under no circumstances require consent from the rightsholder of the linked to work–sparked a number of extremely problematic amendments. These amendments proposed language that, if enacted, would undermine the right to link. By deleting the original paragraph, AMC 15 neutralizes this threat and reaffirms the status quo that increasingly relies on jurisprudence of the European Court of Justice.
In our list of the 10 worst amendments, we highlighted the fact that while some proposed language was aimed at harmonizing the duration of copyright protection at its current terms, a number of amendments had been proposed arguing for increasing the term of protection. AMC 7 somewhat weakens the original language but still contains text that speaks out against further copyright term extensions. While we think that the term of protection needs to shortened significantly, the compromise language is much better than some of the amendments that it would replace.
Compromise amendement 18 contains another compromise that, while far from our own position, still manages to neutralize some of the most problematic amendments. Dealing with the question of text and data mining, AMC 18 avoids the question about whether TDM should be enabled via an exception or via licenses. It further argues that whatever the mechanism, text and data mining needs to be enabled for ‘research’ purposes. In doing so the compromise language neutralises attempts to limit the scope of text and data mining to non-commercial uses only, which would have been highly problematic.
Finally, in our last list we expressed our concern about a number of problematic amendments in reaction to Paragraphs 10 & 11 of Felix Reda’s draft report. These paragraphs argue for harmonization of the the exceptions and limitations of the InfoSoc Directive. Both of these sections are subject to compromise amendments. While AMC 10 tries to balance so many different concerns that it is essentially meaningless, AMC 11 is more interesting. It proposes language that is much weaker than Felix Reda’s original draft. Instead of calling the Commission to make all exceptions mandatory, the compromise language merely ‘calls on the Commission to examine the application of minimum standards across the exceptions and limitations’. This is much weaker than our own position on the harmonisation of exceptions and limitations, as well as the Commission’s stated goal to harmonise some exceptions and limitations. Still, the compromise language points in the right direction (more harmonisation), and as such it is worth supporting.
The Ugly
The text above shows that tomorrow’s vote has the potential to result in a report that contains some very welcome recommendations, while ignoring some of the most blatant attempts to undermine user rights.
This does not take away the fact that there are still many amendments that have the potential to result in highly problematic language to be included in the report. Chief among them are a number of amendments that argue for the possibility of introducing a new European neighbouring right for press publishers–which would hinder innovative access to online content.
There also is a major problem with the wording of Compromise agreement 19, which concerns exceptions and limitations for education. The language contained in Felix Reda’s called for a broad exception, that included non-formal education. AMC 19 limits the scope of the educational exception to accredited institutions and activities which would set a lower standard than the current exception provided by the InfoSoc Directive and should thus be rejected.
Another area of concern is the Freedom of Panorama, where Tuesday’s vote includes an amendment that would call for a uniform freedom of panorama exception across all of Europe, on the other side there is an array of amendments that calls for limiting the freedom of panorama to non-commercial purposes only. The latter would curtail the existing rights in 15 member states. Only adopting AM 419, AM 428 or keeping the original wording would prevent this.
