As a result the final directive does not live up to the “Digital Single Market” label that it carries in its title. The adopted text does very little to harmonise an already complex set of rules among the Member States. Instead, the directive creates additional rules to the system that have been designed to further the (perceived) interests for specific classes of rightholders—most notably the music industry and press publishers. Once the directive has been implemented in the Member States, the EU copyright system will likely be more complex, and thus more difficult and costly to navigate for users and European businesses.

In this regard the provisions of Article 17 (formerly Article 13) remain the most problematic in the entire directive. The article is a legislative monstrosity that will most likely achieve the opposite of what it was intended to accomplish. Instead of establishing clear rules that require commercial content sharing platforms to adequately remunerate the creators of the works that they distribute, it will impose substantial regulatory burdens and create legal uncertainties for years to come. The most likely benefactors of this outcome will be large rightholders and the incumbent dominant platforms. The existing intermediaries within the creative value chain will have the means to navigate the uncertainties and conclude complex licensing arrangements, but users and independent creators at the edges of these value chains will suffer the consequences: They will be presented with fewer distribution platforms to choose from, and they will have less freedom of creative expression.

Implementation can make a difference

With the directive formally adopted by both the Parliament and Council, the fight for a better EU copyright enters into a new phase. The EU Member States will soon have two years to implement the rules established by the directive into their national copyright laws. While such implementations will have to include all the problematic aspects of the directive, there is some room for meaningful improvements, and some measures can be taken to mitigate the worst provisions of the directive.

While the directive largely failed at harmonising the EU copyright rules so that users enjoy the same rights in all EU Member States (the most prominent example of this is the freedom of panorama that exists in some member states while it is absent or limited in others), the countries can still contribute to a more harmonised user rights environment by implementing as many of the optional exceptions from the 2001 InfoSoc Directive as possible. While the DSM Directive contains only a handful of mandatory exceptions, Article 25 makes it clear that “Member States may adopt or maintain in force broader provisions, compatible with the exceptions and limitations provided for in [InfoSoc Directive]”. Expanding user rights by maximising the scope of key exceptions will be one of our priorities during the implementation period.

In addition we will keep a close eye on national implementation of the rules laid down in Article 17. In this regard paragraph 10 of the article is particularly interesting as it requires the European Commission, in cooperation with Members States, to organise stakeholder dialogues aimed at providing “guidance on the application of the Article, in particular regarding the cooperation referred to in paragraph 4”.

While this language is rather vague and non-binding, these stakeholder dialogues (if carried out in earnest with input from users and civil society) may provide a last line of defense against the worst excesses of Article 17, such as the assumed widespread use of automated upload filters. In a statement issued on the occasion of this week’s final vote in the Council, the German government notes:

Under Article 17(10), the European Commission is required to conduct a dialogue with all interest groups concerned in order to develop guidelines for the application of Article 17. The provision explicitly calls for a balance to be maintained between fundamental rights and the possibility of using protected content on upload platforms within the framework of legal authorisations. The German Federal Government therefore assumes that this dialogue is based on a spirit of guaranteeing appropriate remuneration for creatives, preventing ‘upload filters’ wherever possible, ensuring freedom of expression and safeguarding user rights. The German Federal Government assumes that uniform implementation throughout the Union will be agreed on in this dialogue, because fragmentary implementation with 27 national variants would not be compatible with the principles of a European Digital Single Market. On the basis of this declaration, the German Federal Government will participate in this dialogue.

In the light of the fact that the German government voted for the directive in spite of massive protests from its own citizens, this conviction needs to be taken with a big grain of salt. But it should not keep us from measuring the implementation steps taken by the Commission and all Member States against this standard.

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To understand what has happened during the negotiations, it is illustrative to look at the differences between the final compromise and the text that had been agreed among the EU member states last week (which was the result of horse trading between the French and German governments).

A win for dominant platforms…

Yesterday’s compromise text is largely in line with the French-German deal. This includes a terrible version of Article 13 that will severely limit users ability to express themselves online. It will also further consolidate the power of dominant platforms, as smaller platforms will struggle with implementing expensive filtering technology and supporting the increased costs for dealing with increased liability.

It also introduces a EU-wide neighbouring right for press publishers that will have very similar effects. It benefits dominant platforms who can afford compliance while creating additional costs and risks for smaller players. As a result, users will likely end up with less access to information and the diversity of information available online will likely suffer. Under these conditions it remains to be seen if rightsholders will indeed manage to extract more value from the large intermediaries.    

…at the expense of users and creators

As if this would not be bad enough, the negotiators have introduced last minute changes to the text that further weaken provisions that were intended to protect the rights of users and individual creators. The French/German deal did not (at least not clearly) include a UGC exception for users of every online platform, but it used language that at least applied to  user-generated content uploaded to the platforms covered by Article 13. The final compromise has adopted questionable language that may or may not  provide a meaningful protection for users of platforms covered by Article 13, depending on whether Member States are obliged to fully implement the existing quotation and parody exceptions provided in the InfoSoc Directive, and make them applicable to user-generated content, which is not evident from the text.

Likewise the negotiators have gutted a key provision that was intended to ensure that individual authors and performers receive fair remuneration for online uses of their works. Instead of ensuring that they receive compensation for the exploitation of their works, proportionate to the revenues generated, the final language contains a loophole that allows the very practice of lump sum payments that this provision was intended to end.

Taken together these changes result in a directive that will mainly preserve the status quo and that has shed all noble intentions of strengthening the rights of users and creators and bringing more harmonisation into the fragmented EU copyright system. To the contrary, the directive introduces more complexity, privatizes enforcement and increases the legal risks for online operators in the EU. Instead of creating a EU copyright framework that works with the internet, the EU legislator has created a legislative monstrosity that works against the internet and will reinforce some of its most problematic aspects, such as the centralisation of services in the hands of a handful of US-owned platforms.

A final chance to stop the directive (so we can start anew)

We will provide more detailed analysis of the final compromise in the coming days once the official text is available. Before becoming EU law, the text still needs to pass a number of procedural steps. The first two of these, approval by the Member States and by the JURI committee of the European Parliament, are almost certain to happen.

It is the final vote of the whole European Parliament, which will take place in late March or early April, that creates an opportunity to stop this directive from becoming law. In order to achieve this MEPs need to be told loud and clear that yesterday’s deal is bad for users, bad for creators bad for the EU internet economy (you can do so via www.saveyourinternet.eu). Yesterday’s deal is so bad that the only sensible way forward is to vote it down and rethink from scratch what a modern EU copyright framework should look like.

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Given that all three legislators bring similar versions of article 13 to the table, we can expect that a final compromise text will include some version of the article 13 upload filters. There is still a good chance that the negotiations will be inconclusive or that the eventual outcome of the trilogue negotiations will not be approved by either the Member States or the Parliament (which would mean that the directive will fail and there will be no upload filtering requirement for the foreseeable future). But in the context of the ongoing trilogue, the deletion of article 13 (which has been our position so far) is not an option anymore.

This raises the question of how the damage that article 13 will do to the internet ecosystem and freedom of expression can best be contained. Before we do so let’s take a quick look at the positions that are on the table:

EP position: general blocking of all unlicensed content

The provision adopted by the European parliament can only be described as a total disaster. As the result of a misguided attempt to remove the mention of “measures” from the text of the article the European Parliament adopted a version of article 13 that makes platforms liable for copyright infringements for every single work uploaded by their users. This would include any photo, drawing or text uploaded by a user, regardless if these are old works, works that have been created for the express purpose of being shared widely, or the latest blockbuster movie. As a result of making platforms liable for all works uploaded by their users, they are practically forced to install filters that will block everything that has not been licensed to them. In other words, the EP version of article 13 would turn open platforms into platforms that distribute content licensed by the entertainment industry and nothing else.

This idea is so dangerous that even MEP Cavada, who is no friend of the platforms or their users, has criticised it during the negotiations in the European Parliament that it…

.. aligns the liability regime of platforms on the one of traditional broadcaster and therefore imposes an absolute liability in terms of copyright, which is a non-sense. This situation would lead to a general blocking, and by default, of all copyright protected content not covered by a licence, even without a request from rightholders.

Yet this is the position that the European Parliament brings to the trilogue table. On the positive side (which in no way balances out the fundamental flaw of unlimited liability) the EP position contains relatively strong safeguards for users whose uploads are wrongfully filtered and has stronger carve outs for services that are excluded from the filtering requirement.

Council position: Implement upload filters or be liable

The position of the Member States makes much more sense, at least technically (unless we assume that it really is the intention of the EP to turn internet platforms into pseudo broadcasters, in which case the EP proposal also makes sense). The council text also makes platforms liable for uploads of their users, but gives the platforms a chance to limit this liability by implementing upload filters. These filters would need to block (and subsequently suppress) all unlicensed materials identified by their rightsholders. If platforms can demonstrate that they have “effective and proportionate” filters in place that “prevent the availability of the specific works identified by rightholders” and that they act “expeditiously to remove or disable access” to infringing works upon notification platforms would not be held liable for infringements of works that have been uploaded without authorisation. In other words, the Council text requires platforms to filter works that are in the catalogues of rightsholders, but allows them to leave other works online unless they are notified of infringements.

This much more targeted approach is still hugely problematic. As we have pointed out previously, filtering technology is simply incapable of recognising whether a work is legally used on the basis of an exception to copyright. While the Council text requires that the filters are “implemented by the online content sharing service provider without prejudice to the possibility for their users to benefit from exceptions or limitations to copyright” this remains wishful thinking given the current state of technology. Faced with liability platforms will almost certainly opt to err on the side of overfiltering, which will result in structural limitation of users freedom of (creative) expression.

Our position: Upload filters remain a terrible idea (but these four principles would avoid the worst effects)

As the negotiators try to find a compromise between the positions of the Parliament and the Council here are four principles for limiting the worst damage that upload filters would do to the online ecosystem and the rights of internet users in the EU. All four can be implemented without changing the overall structure of the various versions of Article 13 currently on the table.

1. The Scope of application must be as narrow as possible

We have argued again and again that given the intention to provide more leverage for rightsholders vis-a-vis the big commercial media platforms the legislator should make sure that article 13 only affects them and not every single platform that allows user uploads. To achieve this the definition of the services affected (the so called “OCSSPs”) must be as narrow as possible. Currently both the EP and the Council text contain an open ended definition combined with a limited list of exceptions. This approach is overly broad and innovation hostile (services that don’t yet exist cannot, by definition, be included in the list of excluded services). The legislator should limit the application of article 13 to “for-profit audio visual platforms that compete with licensed audio or visual services”.

2. Do not introduce general liability exposure

As we have outlined above the European parliament’s version would make platforms liable for all works that are uploaded by their users. This would include works that cannot be licensed by the platforms (for example because they are out of commerce or because they are not considered to be works by their creators or because the creators simply cannot be bothered to license them). From the perspective of platforms, risking to be held liable for infringements is too risky and this will mean that platforms will be forced to block all copyrighted works uploaded by their users for which they do not have a license. This outcome benefits no-one and would severely limit the freedom of creative expression of millions of European internet users. To prevent this the liability of platforms must be limited to those works that they can actually license (as it is the case in the Council text).

3. Any content filtering and removal must respect user rights

The biggest problem with a requirement to implement upload filters is that these filters are only capable of identifying works. Filters are simply not capable of determining if a particular use of a work is infringing or if it is allowed under  exception or limitation to copyright. Yet both the Council and the Parliament make it clear that any measures implemented need to respect the rights users have under exceptions and limitation. Given the current state of technology this simply amounts to wishful thinking. Both Council and Parliament include redress mechanisms that would allow users to challenge unjustified blocking or removal of their uploads. Given that overfiltering will happen by design it is not acceptable to put the burden to rectify this on users who can only act after the their rights have been violated. To ensure that measures respect user rights platforms and rightsholders must both face meaningful damages for unjustified content removal or blocking. Neither the Council nor the EP version currently meet this condition. Given the current state of technology that would mean that they cannot rely on automated blocking or removal and will need to ensure that platforms are fully licensed.

4. Measures must be transparent and accountable

The way that article 13 is structured means that copyright enforcement and the safeguarding of fundamental user rights are left to private entities (rightsholders and the online platforms). Privatizing enforcement and rule setting in the hands of for profit entities undermines the idea of an open and democratic digital media space. To ensure that the measures are not abused by rightsholders and platforms, users and creators must have full transparency regarding any blocking or removal of content by platforms. In the interest of full transparency all measures should be based on publicly accessible repertoire information that is available to all platform operators. This ensures that rightsholders can be held accountable for unjustified blocking or removal as a result of faulty repertoire claims and that all platforms have access to the same repertoire information. Neither the Parliament nor the Council text currently include language that would ensure a sufficient level of transparency for all parties involved.

Unless these four principles are taken into account any version of Article 13 will need to be rejected when it comes back for a final vote to the European Parliament.

A final chance to minimise unnecessary harm

During tonight’s trilogue negotiations lawmakers should take these four principles into account. Instead of insisting on the flawed texts that they brought to the table, they should attempt to achieve a text that causes minimal harm, to users, creators and the internet ecosystem as a whole. To achieve this they need to make sure that any obligations under article 13 only affect the services they are intended to affect and only concern works from rightsholders who actually intend to license their works to the platforms. Lawmakers also need to make sure that measures implemented fully respect user rights and are fully transparent. Anything falling short of this would result in a legislative measure that will both fail to achieve its objective and will cause substantial collateral damage for the internet ecosystem in the EU. It will further underline the point that the EU copyright framework is about protecting legacy business models of a few at the expense of freedom of expression and innovation.

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The result is a version of the Commission’s proposal that is even more out of balance than the original. The rights-holder lobby has managed to capture the Member States to advance their agenda to the detriment of the interests of internet users in the EU and in complete disregard of the original intention to further harmonise the fragmented EU copyright rules:

• Over the past one and a half years the Member States, driven by a mediterranean maximalist coalition (France, Italy, Spain and Portugal) have doubled down on the Commission’s highly problematic proposal to impose upload filters for open internet platforms. As we have explained here, the version of Article 13 adopted by the Member States would create a new parallel liability regime that puts the creative expression of platform users at the mercy of a censorship machine run by platform operators in collusion with rightsholders.
• Driven by the same mediterranean maximalist coalition the Member States have insisted on a narrow, innovation-hostile exception for Text and Data Mining. This approach flies in the face of the EU wide ambition to become an important player in the area of machine learning and artificial intelligence. At the insistence of more forward-looking Member States the Council text also includes an optional exception that allows TDM for a wider set of purposes and beneficiaries, but this comes at the cost of further splintering user rights in the EU.
• Under intense pressure from Germany the Member States have maintained the introduction of a new ancillary copyright for press publishers against a near-universal academic consensus that such a right will endanger the freedom of information without benefitting press publishers. In a small improvement of the Commission’s proposal the new right would now last for a maximum of 2 years and would not apply retroactively.

There are a few areas where the Member States are proposing improvements to the Commission’s proposal (such as a more streamlined process that would allow cultural heritage institutions to make out-of-commerce works available online, and a new, albeit optional, paragraph providing a legal basis for extended collective licensing) but in general the Member States have missed the opportunity to fix the Commission’s flawed original proposal.

In adopting this text the Member States have made it clear that they do not care for user rights and that they see copyright law as an instrument to protect legacy business models in the publishing and entertainment industries at the expense of education, research and public access to cultural heritage. If adopted, the Council text would drive Europe further away from a true Digital Single Market in which users across Europe have the same rights, and it fails to provide a legal framework that embraces technological innovation.

It is now up to the European Parliament to save users’ rights

All of this raises the stakes for the European Parliament. MEPs are under intense pressure to finalise their position at the end of June. With the Member States ignoring the interests of users and more or less completely siding with the interests of rightsholders, the Parliament needs to put forward a version that can counterbalance the one sided approach championed by both the Commission and the Member States. If they no not want to lose credibility MEPs need to advance proposals to safeguard the rights of European citizens, harmonise the splintered EU copyright rules, and reject demands for additional rights that will hurt European internet users.

A Digital Single Market that benefits the citizens of Europe is incompatible with privatized censorship filters or an ancillary copyright that limits the ability to share information. What is needed instead are harmonised exceptions that allow citizen across Europe to leverage digital tools for education, provide them with better access to our shared cultural heritage and allow them freely research and innovate.

Unfortunately the discussions in the JURI committee currently point in the opposite direction. Therefore it is high time to remind MEPs that they have been elected to represent the interests of citizens and should not join the Member States in promoting the special interests of the entertainment and publishing industries. You can do so right now ee via Mozilla’s ChangeCopyright tool.

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Last week (after yet another inconclusive meeting on Article 13) MEP Voss has asked the political groups to provide him their final written comments “on the MAIN and MOST IMPORTANT open issues” by Wednesday the 23rd. On the same date the Bulgarian Council presidency has scheduled an attaché meeting to discuss the latest compromise proposal.

In the light of these (final?) attempts to wrap up the discussion it is important to take another look at how the discussion has evolved since the Commission published its proposal and how the 3 different versions of Article 13 compare to each other. In order to do so we have analysed the internal logic of the Commission proposal, the last Bulgarian compromise proposal and version 6 of the European Parliament’s Legal Affairs committee compromise text and depicted the most important elements in a series of flowcharts (see below). Even a casual glance at these makes it clear that both the Council’s and the Parliament’s changes to the text have resulted in vastly more complex versions.

Commission proposal: Simple language that creates a legal mess with lots of uncertainties.

Compared to the other two versions the Commission’s proposal is a thing of beauty. The article consists of three relatively concise paragraphs which results in a relatively straightforward flowchart:

It is worth noting here that the Commission version of Article 13 manages to be so simple because it attempts to hide some of the most consequential provisions in Recital 38 of the text. Recital 38 contains language that attempts to redefine the activities of platforms that allow user uploads as acts of communication to the public and in doing so to strip these platforms of the liability limitations of article 14 of the eCommerce Directive (ECD). Stripped of the liability limitations, those platforms with “large amounts” of user uploaded content need to conclude licensing agreements with rightsholders and to deploy upload filters to filter out all unlicensed content.

We have previously described the main problems with the Commission proposal in more detail. In summary, the most important problems are that it would require online platforms to filter all user uploads (even though it is clear that filters can’t distinguish between legitimate and infringing uses of content), that it creates a lot of legal uncertainty for online platforms and that it contains insufficient safeguards for users who will be limited in their freedom of creative expression. For all of these reasons we think that Article 13 should be deleted from the proposed directive.

Council: a new parallel liability regime for Online Content Sharing Service Providers

The main difference between the current Council compromise proposal and the original Commission text is that the former is much more explicit about the intention of Article 13. The Council text brings a number of issues that are hidden in recital 38 of the Commission text out into the open. The result is a much longer Article (it has grown to 8 paragraphs) with a much more complex structure:

Before going into the details here it is important to highlight that the core idea of the Commission’s proposal remains unchanged: platforms that allow user uploads (in other words all open platforms) will need to conclude licensing agreements and deploy upload filters that filter all unlicensed content that has been identified by rightsholders. Where the Commission’s proposal would achieve this by creating legal uncertainty around the application of the liability limitations of the eCommerce Directive, the Council text minces no words and provides (in paragraph 3 of Article 13) that the ECD liability limitations do not apply to Online Content Sharing Service Providers (OCSSPs – their fancy term for open platforms).

The text further requires OCSSPs to obtain licenses from rightsholders and to filter out all content that has been identified by rightsholders and subsequently to ensure that once filtered out it remains unavailable. As such, the Council’s text replaces the notice and take down approach of the ECD with a licensing requirement coupled with a notice and stay down approach. Where the notices given under the ECD regime need to identify infringing uses of a protected work, these new Article 13 notices are simple claims that a work is owned by a rights holder regardless of whether the use is infringing or not.

This will have a substantial effect on the freedom of creative expression online (more stuff will be taken down and filtered at upload). The fact that, in an act of wishful thinking, the Council text requires Member States to ensure that the filtering measures do not negatively affect the user rights granted under exception and limitations, does not change this. Filtering technology is simply not capable of detecting when a use is covered by an exception and when it is not.

The other big change made by the Council text is the introduction (in article 2) of a definition of the services (the above mentioned Online Content Sharing Service Providers) that will need to comply with the obligations established in Article 13. While this introduces some more clarity than the Commissions ‘services that share “large amounts” of content’ criterium, it still creates more harm than good.

As we have argued in more detail before it is pretty much impossible to define a specific set of services by describing how they interact with copyright without having that definition apply to nearly any open platform. The Council’s text contains a set of exceptions that apply to a range of not-for-profit online platforms, such as Wikipedia, but even with these in place it is destined to cause a lot of collateral damage far beyond the types of platforms that are the real target of Article 13. To please the content industry the Member States are clearly willing to put large parts of the European digital economy into jeopardy.

European Parliament: Filtering obligations with a healthy dose of wishful thinking

The current European Parliament compromise is very similar in structure to the Council text and mirrors the Council’s approach to define the services (also referred as OCSSPs) that need to comply with the provisions established by Article 13. With regard to the actual provisions of the article it lacks some of the clarity of the Council’s text (it largely stays away from the question of whether OCSSPs are covered by the ECD liability limitations or not) while keeping the core of the Commission’s proposal (open platforms need to obtain licenses and deploy upload filters) intact. The result looks rather messy:

What the Parliament text lacks in legal clarity it tries to compensate by way of wishful thinking. In response to the widespread criticism of the Commission proposal from civil society groups, technology companies and academics, a number of provisions have been added to the text that, on the surface, seem to protect the rights of users.

On closer inspection these additions attempt to will the impossible into existence: similar to the Council’s version, the Parliament text requires that the upload filters must ensure “the non-availability of copyright or related-right infringing works or other subject-matter [on the platforms], while non-infringing works and other subject matter must remain available”. This is of course something that filters cannot achieve, and in practice this provision will not prevent that legitimate uses of content will be filtered out on a large scale.

In similar expressions of wishful thinking the Parliament’s text requires Member States to ensure that the “implementation of [the filtering measures] shall be proportionate and strike a balance between the fundamental rights of users and rightholders and shall not impose a general obligation on OCSSPs to monitor the information which they transmit or store”.

Instead of confronting the fact that filtering technology is not suited to distinguish between legitimate acts of cultural expression and copyright infringement, the Parliament seems to have chosen to saddle up the Member States with the impossible task of ensuring that upload filters  respect user rights. This is not only a cowardly act of symbolpolitik but also a complete failure of Europe’s elected representatives to stand up for the interests of internet users in the EU.

Looking ahead: deletion remains the only (sensible) option

After more than one and a half years neither the Council nor the Parliament have found a way of fixing the problems of the Commission’s original proposal. Of the two approaches the Council’s plan is the more honest one as it does not hide what it is trying to achieve. But neither the Council’s nor the Parliament’s approach manage to tailor the filtering and licensing requirements in such a way that they will only affect their intended targets (large commercial content sharing platforms with advertising based business models).

To anyone paying close attention this does not come as a surprise: In a world where open online platforms for sharing copyrighted content (other than music and video) are central to the digital economy, modifying the copyright rules to the benefit of a small class of rightsholders will have adverse effects throughout the digital economy. The only way to prevent these is to delete Article 13 from the directive and to address the question of remuneration for the use of creative content by open platforms in a context that is separate from general copyright policy making.

A note on the flowcharts: These have been buildt based on the latest version of the respective texts and illustrate the most important operative provisions of these texts. In order to keep them manageable we have ignored some of the details. In each flowchart we have highlighted the actual filtering provisions in light red and safeguards for user rights in light green. If you have any feedback or questions related to the flowcharts feel free to leave a comment below or mail us at communia@communia-association.org.

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So what’s the status with regards to these 3 articles and where do the member states stand on them?

Article 13: Continued divisions over the scope of #censorshipfilters

In spite of the significant doubts that many member states expressed last year regarding measures targeting open online platforms contained in Article 13, the article has survived the subsequent rounds of discussions in the Council nearly intact. This seems mainly due to a pivot by the German government which is now backing censorship filters – even though the coalition agreement that underpins the current government is highly critical of such measures.

While there is agreement in principle, the Member States are still spit on the scope of the article. The maximalist axis of France, Spain, Portugal and Italy is backing a broad implementation of the article, while most other member states (including Germany) seem to be favouring a narrowing down of the scope of the services that would be required to filter. Lack of consensus on the scope of Article 13 seems to be the main obstacle that prevents the Bulgarian presidency from closing the file.

Member States (in red) supporting the introduction of censorship filters for online platforms (own research)

As we have argued before, rushing Article 13 across the finish line carries substantial risks to the European internet economy and to our freedom of creative expression. The only sure way to prevent collateral damage from the music industries attack on open platforms is to send Article 13 back to the drawing table and to delete it from the proposed directive. While this seems highly unlikely at this stage it is important to support those Member States that continue to resist to the pressure exercised by the countries from the maximalist axis.

Article 11: Too little too late

Earlier this year, the member states have conceded to pressure from Germany and have settled on the introduction of a publishers right even though there is a strong academic consensus that such a right is inefficient and will have detrimental effects for libraries and more generally with regards to the freedom of expression. Having lost the battle for the more sensible approach to introduce a presumption of representation, a large number of member states are trying to limit the scope of the press publishers right.

Last week’s working group meeting resulted in some small improvements. A majority of the Member States insisted on reducing the term of protection to a more reasonable 1 year and to maintain originality as a criterium for protection. The last bit is certainly better than simply granting protection to snippets above a certain length (as Germany, France and Estonia have demanded). While in theory an originality requirement seems a step in the right direction, we are not looking forward to the inevitable wave of court cases on the originality of headlines and introductory sentences. Granting an additional layer of rights to press publishers remains a terrible idea no matter how short the term of protection and how original the headlines they produce.

Member States (in red) supporting the introduction of a press publishers right in the EU (own research)

Article 3a: An incomplete fix

After having agreed on a version of Article 3 that supports the Commission’s fundamentally flawed approach to Text and Data Mining (a mandatory exception that allows text and data mining for research organisations and for research purposes only and would require everyone else to obtain licenses before they can text and data mine materials that they already have access to), the more progressive member states have thrown their hope behind an additional optional exception that would let anyone to mine material for any purpose unless right holders have expressly reserved the right to prohibit TDM.

While this would certainly improve the situation in member states who implement the exception, the limitation of the exception to temporary copies is highly problematic (see our earlier analysis here). Also the approach of adding an optional exception runs somewhat contrary to the objective of the directive to contribute to a digital single market as it will further fragment user rights in EU copyright law.

In its current form Article 3a is opposed by a rather curious coalition of the maximalist axis (FR, ES, PT, IT) and Estonia. Together these countries have a blocking majority but it seems that some of them are willing to revise their position as they finally start to understand that it will be difficult to position the EU as a first class AI research location if fundamental undermining of AI are limited by copyright law. With such insights gaining ground, the member states should have the guts to re-open the discussion about Article 3 and expand the scope of the mandatory exception to allow TDM for any purpose by anyone. Anything else will constitute willful sabotage to the future of technological innovation in the EU.

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The overriding concern expressed by the rightsholders in their letter is that some of the more recent changes introduced in the council would turn Article 13 from a magic weapon against a few online platforms into a mechanism that threatens to further empower these very platforms in a way that does not benefit rights holders. In response to this, Creativity Works! (CW!) argues for further strengthening some of the most problematic aspects of Article 13.

We have long argued that Article 13 seems to be designed to benefit the big dominant online platforms, as it will entrench their market position. For smaller companies compliance with the filtering obligations will be difficult and costly while the main targets of Article 13 already have filtering systems in place (such as YouTube’s Content ID), and it is a welcome sign to see rights holders waking up to this reality.

For us it has been clear from the start that Article 13 will not achieve its stated goals. Instead the filtering obligations will cause tremendous harm to the freedom of expression and to open platforms that operate in fields that have nothing to do with the distribution of entertainment products. For this reason we think that the only responsible way to deal with Article 13 is to delete it and start over with a discussion about how we can best ensure that creators can be fairly compensated for their work. (Note that in this discussion most of the members of CW! are likely to be part of the problem rather than the solution as CW! has very little representation from actual creators.)

And while CW! is not joining us in our call to delete Article 13, their letter does illustrate our argument that adjusting general concepts of copyright law in order to address the concerns of specific groups of stakeholders is utterly irresponsible in the light of the big (and often unintended) consequences such an intervention can have.

Case in point: the re-definition of right of communication to the public. We and others critical of Article 13 have long argued that Article 13 would expand the right of communication to the public. Within the Commission’s proposal this aspect of Article 13 was hidden away in a recital, but over the successive drafts it has become more explicit. This seems to have led to the sudden realisation by rights holders that such a re-definition of this important right can also negatively affect them. In their letter they wrote on the last Bulgarian compromise proposal:

It would limit the scope of the right of communication to the public by incompletely applying Court of Justice of the European Union (CJEU) case law and setting into stone in Article 13 only certain criteria developed by the Court. This approach would roll-back the CJEU’s case law, which has repeatedly confirmed that a broad interpretation of the right of communication to the public (CTTP) is necessary to achieve the main objective of the Copyright Directive, which is to establish a high level of protection for authors and rights holders. CW! recalls that the exclusive right of communication to the public, including the making available right, as enshrined in EU law (and further clarified by the Court), has emerged as the bedrock for the financing, licencing and protection of content, as well as its ultimate delivery to consumers in the online environment. The Court has also emphasised, in its recent judgments, that in order to determine whether there has been a CTTP, several complementary criteria must be taken into account, which are not autonomous, but are interdependent. Any proposals that entail a selective application of the Court’s jurisprudence, or that imply a narrowing of the scope of the right of CTTP, would be contrary to the protection required by current EU and international law.

While we do not agree that the current draft would limit the scope of the CTTP right, this passage illustrates the dangers of carelessly fiddling around with core legal concepts that underpin the EU copyright framework. In this context it is important to recall that the mechanism proposed in Article 13 has not been part of the public consultation that preceded the proposal, and that its modifications of core legal concepts have not been properly analysed by the EU’s own impact assessment. In other words, Article 13 is the product of a sloppy, ideologically-driven way of law making and should be sent back to the drawing table for this reason alone.

The rightsholders have been in for a similar surprise with regard to another tiny veiled objective of the Commission’s proposal – the attempt to strip open online platforms of their liability limitations that they enjoy under the e-commerce proposal:

It would not fill a gap for rights holders, but rather create additional privileges for certain big content sharing platforms. Article 13(4) would create a new special limited liability regime for online content sharing service providers (“OCSSP”) who communicate to the public as it would exempt an OCSSP from liability when it has made “best efforts to prevent the availability of specific unauthorised work or other subject matter for which rightsholders have provided it with information.” This provision would be another clear step backwards for rights holders and would favour certain online platforms. Under the current law, these platforms are already required to take measures with respect to specifically identified and notified works – not only to make “best efforts.” If they do not do so, they do not qualify for the liability privilege under Article 14 of the E-Commerce Directive.

Not surprisingly, this is another element of the proposal that has not been properly addressed in the run up to the proposal or in the impact assessment. In this case we can even agree with the assessment put forward in the CW! letter. This proposal is bad and will further entrench the dominant position of the established online platforms. This will be negative for creators but even more so for users who will be confronted with upload filters that censor their speech and creative expression without actually helping other creators of original content.

While it seems unlikely that the rightsholders will abandon the path that they have embarked on and join us to demand the deletion of Article 13, it is not too late yet. The fact that those who have pushed these dangerous ideas forward are now suddenly terrified by the monster that they have created should open the eyes of lawmakers and anyone who is interested in a functional EU copyright framework that rewards creativity and encourages innovation. There is still time to delete Article 13 and start a proper discussion about how Europe can best ensure that creative work is fairly compensated in the online environment. As we have argued before, the outcome of such a discussion may very well be that there are better ways to achieve this objective than carelessly abandoning core principles of a copyright system that needs to serve the interests of many more sectors than just the entertainment industry.

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We’ve continued to follow Article 3 since the European Commission published its proposal on copyright in the Digital Single Market. Even though the Commission’s exception for TDM would be mandatory, we criticised their plan as not going far enough, as it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research.

TDM in the Bulgarian presidency proposal

The Bulgarian proposal is nearly identical to the changes already offered by the earlier Estonian plan. It leaves intact the Commission’s obligatory TDM exception that would apply to research organisations (including cultural heritage institutions) for purposes of scientific research. The Bulgarian proposal similarly introduces an additional and optional exception in Article 3 for temporary reproductions and extractions. This additional exception would apply to beneficiaries other than research organisations, and for uses other than scientific research. But those acts would be limited in that they only would cover temporary reproductions and extractions, and only if the rightsholder does not prohibit it.

In our earlier blog post we wondered whether the existing (and mandatory) exception in the InfoSoc and Database Directives on temporary reproductions arguably already covers the temporary reproductions for text and data mining purposes. In any case, this additional and merely optional exception, for acts that might already be covered under existing law, which can easily be neutralised if rights holders don’t want it, is a weak compromise. It doesn’t address the main concerns we’ve had with Article 3 since the beginning. It also fails to bring much needed harmonization and will instead further the already existing fragmentation of users rights in EU.

Another ask to Parliament

Last week, Communia joined 27 organisations in a letter to the Legal Affairs committee asking them to improve the exception for text and data mining. Specifically, we called for the committee to 1) broaden the scope of the article so that it permits TDM by anyone, 2) support the provision that ensures that contractual terms restricting the use of the exception will be deemed unenforceable, 3) clarify that technical protection measures cannot be used to restrict the ability for beneficiaries to exercise their rights under the exception, and 4) add a provision to allow datasets created for the purpose of TDM to be stored on secured servers for future verification.

A progressive TDM exception can support science and DSM at the same time

A recent article in Nature explores the potentially negative consequences of the EU copyright reform on open science, including the implications of extending the press publishers right to academic articles (terrible idea, by the way), and the challenges posed by the upload filters to research repositories.

The article also explains that the copyright exception to permit TDM across Europe could be seen as a silver lining to the other more protectionist measures of the reform—if it would actually be expanded to include commercial beneficiaries.

The Commission’s original proposal was supposed to be a copyright reform that promotes scientific research, but also expands the EU digital single market. But so far, the TDM provisions don’t adequately address the incredible opportunities to kickstart European-grown technologies, processes, and discoveries. Without a more progressive TDM exception that incubates investment and innovation in these sectors, startups, firms, and partnerships that do not fit neatly under the narrow exception will leave these EU lands for greener pastures with more permissive and supportive legal environments for TDM.

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The same goes with Article 11— the provision that would create new rights in press publications and allow press publishers to control digital uses of even the smallest snippets of their content. We’ve advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

Instead, the Bulgarian “compromise” doubles down on the Commission’s original idea and ignoring most of the positive protections offered by some members of Parliament and the earlier Estonian draft.

First, the Bulgarian position removes the following text associated with Article 11: “This protection does not extend to acts of hyperlinking when they do not constitute communication to the public.” The public interest community has warned that Article 11 could be used to censor links, but policymakers in favor of Article 11 brushed off these concerns. Now with this language erased, it’s full speed ahead for rights holders to attempt to control how links are used throughout the EU.

Second, the compromise modifies the text to include that “information society service providers” could be subject to the press publishers right. This could be interpreted as an expansion of those types of platforms that are subject to the right, although it’s good to see that the Bulgarian proposal leaves intact the text that academic and scientific publishers specifically are excluded from the scope of the right (unlike the flawed ITRE opinion).

Third, the proposal does not include the option presented earlier by MEP Comodini (and also contemplated in the Estonian presidency compromise) that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.”

Fourth, the Bulgarian compromise alters the term of the press publishers right from 20 years to 10 years. Considering the incredibly short useful life of news stories and much other content that would be subject to the press publishers right, shortening the term to 10 years meaningless. It’s sort of like making a compromise that it would be disgusting to drink milk that expired two months ago, but drinking milk that expired only one month ago is just right!

Finally, one good aspect of the proposal is the inching toward a more reasonable approach to not grant copyright-like rights where none should exist. The text states, “As the protection granted to publishers of press publications under this Directive should not go beyond the protection granted in Union law to the authors of the works contained therein, other extracts of press publications which do not reach a minimum level of originality should not fall within the scope of the rights provided for in this Directive.”

The Bulgarian consolidated presidency compromise proposal is disappointing—to say the least. Despite overwhelming evidence that it’s a universally bad idea that won’t accomplish what supporters say it will—and instead will create massive problems for access to information and journalism—Article 11 continues to maintain (and seemingly gain) traction. What a shame. Like Article 13, it should be deleted.

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Generally speaking it is a good indication that a policy is bad if there is a need to make a large number of exceptions to prevent it from doing lots of unintended harm. This principle is on full display in the discussion about article 13. As we (and many others) have argued before, article 13 is broken so badly that it cannot be fixed and should be deleted. The key problem with article 13 is that the music industry is employing its old weapon of choice (copyright law) in an attempt to reign in behaviour of a very small group of online platforms that is perceived as problematic by the music industry. By using copyright law as a trigger for the licensing and filtering obligations contained in article 13, the article inevitably effects every other online platform that deals with copyrighted contents (i.e pretty much all online platforms).

It is not surprising that other platforms that operate in completely different markets (like GitHub which has nothing to do with uploading music) have started to realise that article 13 is a threat to their businesses and are demanding to be excluded from the scope of article 13. While excluding such platforms seems like an obvious choice to prevent some of the worst side effects of the provisions contained in article 13, it will not fix the underlying problem: In an age where copyright touches almost every online business model, copyright law is not a suitable regulatory instrument to adjust the bargaining positions of specific industries anymore. In order to make sure that article 13 has no negative side effects it would need to come with a list of exceptions that excludes every single business model that it is not targeted at.

Even if it was possible to draw up such a list, the result would still be hugely problematic as such an approach would simply lock into place the existing situation. Online services and/or business models that have have not been invented yet cannot be added to such a list and, as a result, would be affected by the obligations established by article 13. This would turn article 13 into another barrier to further development of the European Digital Economy and make any new service that so much as touches copyrighted material dependent on the fiat of organised rightsholders.

All of this reconfirms our conviction that article 13 is a bad idea, that there is no way to fix it and that it should be deleted. If the European legislator wants to address what is perceived by some to be an unequal distribution of the value generated from the online use of cultural goods then we need to find better instruments to do so. To prevent unintended harm in other sectors of the digital economy such instruments should be targeted specifically at the types of platforms they are intended to regulate (for example by describing the type of service offered, the specific sorts of copyrighted materials that would need to be licensed or specific elements of the business models in question).

Of course targeting specific companies or business models is tricky, but it is much better than dressing this intention into a set of broad changes to copyright legislation that will cause substantial collateral damage. If EU lawmakers want to prevent a future where Europeans don’t have access to open online platforms anymore, they should reject the urges of the music industry to limit the liability protections for online intermediaries and to further expand the ability of rightsholders to limit how users can express themselves online.

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