Somewhere far out in the uncharted backwaters of the unfashionable end of the EU lies a small unregarded country—Bulgaria. In 2018 this Member State will not only be known for resonant voices and rampant corruption, but also for its prominent role in the EU copyright reform. While it holds the rotating Presidency of the Council of the EU it is up to the Bulgarian government to propose new compromises and bring the discussion forward in order to reach a common position between Member States.

But the Council is not Bulgaria’s only copyright stronghold at the moment. The reform falls in the competences of the country’s Commissioner Mariya Gabriel, and 10% of the votes in the lead European Parliament committee (Legal Affairs) are to be cast by MEPs from parties currently making up its governing coalition.

The Bulgarian Compromise, a French Affair?

At the end of 2017 the Council negotiations hit somewhat of a stalemate and the Estonian Presidency was forced to give up, unnerved after trying for months to square the circle between the content industry’s bold demands and fundamental rights for users and the public.

Apparently the Bulgarian Presidency decided to kick 2018 off with a fresh approach. They circulated questions on the most controversial articles of the reform among Member States and then seemed to be proposing a new compromise.

Weirdly enough, this proposal seems to be very close to the positions of France, Spain, and Portugal than a honest attempt at balancing between the different challenges Europe faces.

What is even more astonishing is that Bulgaria proposes a limitation of the non-liability regime provided under the E-Commerce Directive. This looks like a very surgical attack on this country’s own interests. While a limitation of the liability protection would presumably favour the big rights holders in the music and film sectors in the EU—whose umbrella organisations are at the forefront of this lobbying—these industries are negligible in Bulgaria. This comes at the same time that Sofia and its other cities are now host to a multitude of IT companies paying above average salaries in the poorest EU Member State, and a burgeoning start-up scene is at the heart of the creation of attractive jobs. Article 13 would essentially stifle start-ups. Why a poor country would propose something that hurts its own industry to help France’s content business is mystifying.

A new campaign

There is something rotten in Bulgaria and it seems that, as all too often, the connection between Brussels and the national media is not working. While the Presidency is proposing principles that will pretermine the development of the European and Bulgarian industries for at least a decade—and will risk submitting its citizens to surveillance regimes unimaginable a decade ago—the national debate is not taking place at all.

This is why a new Bulgarian campaign, supported by digital rights groups, universities, libraries, Bulgarian businesses and Communia itself kicked off last week in Sofia. An open letter was sent to the Ministry Culture and the Bulgarian Presidency laying out the issues of Bulgarian stakeholders. The Bulgarian Presidency and government should stand up for start-ups, users, and a fair balancing of fundamental rights.

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Given Ms. Comodini’s deep understanding of the interplay between law, society, and technology, and the shrewd manner in which she solved several legal Gordian Knots in her draft, it comes as a disappointment that we fail to see some forward-looking changes that would really make the European copyright framework fit for the Digital Single Market.

Freedom of Panorama

Some two years ago the European Parliament had its first heated discussion on the question of Freedom of Panorama. A lot has happened since then, including introduction of a new copyright exception in support of Freedom of Panorama in both France (limited) and Belgium (full).

The European Commission ran a consultation on Freedom of Panorama and, according to the synopsis of the public feedback, consumers, institutional users, service providers, professional photographers and architects expressed that the introduction of a mandatory exception would have a positive impact on their activities. In its communication on promoting a fair and efficient European copyright-based economy in the Digital Single Market, the European Commission “confirms the relevance of this exception” and “strongly recommends that all Member States implement this exception”.

Last but not least, Marc Joulaud, the French conservative Rapporteur for the Culture Committee (CULT) from the EPP Group, proposed in his draft opinion to introduce a mandatory Freedom of Panorama exception in the EU. Although the wording wouldn’t really solve many everyday problems, it must be regarded as a first compromise offer and willingness by the EPP to improve user rights online.  

Given all these massive shifts in the Council and the European Parliament toward a Freedom of Panorama exception, the rapporteur and her shadows must engage with this issue and work toward finding a way to include it.

User-Generated Content

Similarly, another user rights aspect is gaining enormous momentum. Both Ms. Stihler (S&D, IMCO) and Mr. Joulaud (EPP, CULT) have already proposed a user-generated content exception in their respective draft opinions. Rapporteur Stihler’s broad scope is especially important, as it would permit a person “to use an existing work or other subject matter in the creation of a new work or other subject-matter, and use new work or other subject matter”. In other words, it doesn’t matter what a user needs the protected content for, he or she may use it as long as they create something new with it. On the other hand, CULT’s draft opinion proposed a UGC exception to apply without prejudice to commercial/non-commercial uses, a positive move because the distinction between what is commercial vs. non-commercial is very often impossible to make online. But, there is no doubt user-generated content has become an important issue in the copyright reform debate.

Legalising the everyday practice of using parts of works to create content is necessary in order to establish a copyright framework than can be both protected and respected. It is also common sense. Such uses of extracts or quotations typically do not cause significant economic harm to the rightholders concerned. On the other hand, they significantly help user-generated projects improve access to high-quality educational materials and our cultural heritage.

The proposal to include the idea of user rights in this Directive is laudable, and potentially a giant step forward for Europe. We are finally getting to a place where we can openly discuss the right balance between authors’ and users’ rights. However, given that users’ rights in the cases of Freedom of Panorama and User-Generated Content are simultaneously authors’ rights, it is a big letdown to find them ignored in the current JURI draft opinion.

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Position paper: Copyright Reform to Protect the Rights of Photographers and Painters

Public spaces in our cities and countrysides are a functional part of the commons, the places accessible to all members of society. These belong to the public and are not owned privately. The right to take and re-use pictures of our public spaces is critical for the arts, preservation of culture, and education. It is also highly relevant to freedom of expression. It forms the foundation upon which many European photographers, painters, and visual artists create art and earn a living.

The European Commission ran a consultation on this right, known commonly as “Freedom of Panorama”. The results of the consultation confirm that consumers, institutional users, service providers, professional photographers, and architects believe that making this right mandatory across the EU will have a positive impact on their activities.

In its communication published alongside the EU copyright reform proposal, the European Commission “confirms the relevance of this exception” and “strongly recommends that all Member States implement this exception.” Both Vice-President Ansip and Commissioner Oettinger have since publicly confirmed that there is a majority in the Council for such a mandatory right.

Despite broad support for the Freedom of Panorama right from various stakeholders, almost certain majorities in the Council and its own call to all Member States to introduce it, the European Commission decided not to include this issue in their Proposal for a Directive on Copyright in the Digital Single Market. Instead, the Commission proposes that the exception remains unharmonised as per Copyright in the Information Society 2001 Directive.

The problems with the proposal

1. Fails to deliver an efficient and competitive Digital Single Market

The national copyright frameworks of Europe currently do not offer consistent rules on the Freedom of Panorama. The majority of countries have this right, but countries such as Greece, Italy, and Luxembourg are missing it entirely. Even while some countries have a copyright exception that allows people to share images of buildings and public art, the law in other countries restricts this exception to buildings only, or to non-commercial use, or based on the location of the photographer in relation to the artwork. This disharmony creates legal uncertainty for people who share their works across borders – i.e. anywhere on the internet, or with a work of art that will be shown or sold in another EU country. This situation also makes it difficult or even impossible to organise a European photography contest, or publish a book with photography. By not tackling this issue the European Commission perpetuates EU cross-border legal issues and thus fails to deliver on the primary goal of the reform.

2. Fails at providing a fair balance between private and public interests

Public spaces are a valuable public resource. Municipalities sometimes charge rent for visible parts of public spaces (advertising). In the case of works permanently installed in public spaces, a large proportion of the added value comes from the public space itself. The author is paid upfront for the installed artwork and receives additional income from using the public space as an advertising and exhibition space. Not allowing the re-use of images of public spaces would be akin to the privatisation of the commons.

Recommendations

COMMUNIA asks the European Parliament to introduce a broad, EU-wide Freedom of Panorama right that applies to both commercial and noncommercial uses of all works permanently located in public spaces.

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