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Directive on Copyright in the Digital Single Market

The Directive on Copyright in the Digital Single Market 2016/0280(COD), also known as the EU Copyright Directive, is a proposed European Union (EU) directive intended to ensure "a well-functioning marketplace for the exploitation of works and other subject-matter... taking into account in particular digital and cross-border uses of protected content".[1] It extends existing European Union copyright law and is a component of the EU's Digital Single Market project.[2] First introduced by the European Parliament Committee on Legal Affairs on 20 June 2018, a revised proposal was approved by the European Parliament on 12 September 2018. A final version resulting from negotiations during Trilogue discussions was presented to the European Parliament on 13 February 2019.[3] If approved in Parliament, each of the EU's member countries would then be required to enact laws within 24 months to support the Directive.[4]

Directive 52016PC0593
European Union directive
Text with EEA relevance
TitleDirective on Copyright in the Digital Single Market
Made underArticles 53(1), 62 and 114
Preparative texts
Commission proposalCOM/2016/0593 final - 2016/0280 (COD)
EESC opinionOJ C 125, 21.4.2017, p. 27–33 (BG, ES, CS, DA, DE, ET, EL, EN, FR, HR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
EP opinion
Reports
Other legislation
AmendsDatabase Directive (Directive 96/9)
Copyright Directive (Directive 2001/29/EC)
Proposed

The European Council describe their key goals as protecting press publications, reducing the "value gap" between the profits made by Internet platforms and content creators, encouraging "collaboration" between these two groups, and creating copyright exceptions for text and data mining.[5] The directive's specific proposals include giving press publishers direct copyright over use of their publications by Internet platforms such as online news aggregators (Article 11) and requiring websites who primarily host content posted by users to take "effective and proportionate" measures to prevent unauthorised postings of copyrighted content or be liable for their users' actions (Article 13).

Articles 11 and 13 have attracted widespread criticism and controversy from European and American parties, with fears that the directives would inhibit online expression by requiring websites to obtain licenses in order to link to news articles, and Article 13 would require use of content-matching technologies that cannot identify fair dealing such as parody.[6][7] Initial supporters of the directive included largely media groups and large publishers, which reject these arguments with claim that a disinformation and astroturfing campaign was carried out by big Internet platforms.[8][9][10][11] These large media groups and publishers, however, have had much greater contact between their lobbyists and MEPs than the technology industry.[12] A group of major international media and music rights-holders initially supported the proposal, but flipped to opposing as it was finalized in February 2019.[13] The International Federation of Journalists calls the current version "bad for journalism".[14]

Contents

HistoryEdit

BackgroundEdit

The European Union's (EU) first attempt to unify copyrights in light of digital technologies was adopted in 2001 as the Copyright Directive 2001/29/EC.[15] The Directive's major objectives were to harmonise EU legislation with international law (as set by the 1996 World Intellectual Property Organization treaties), to strengthen intellectual property protection, to reduce conflicts in copyright laws between member states, and to assure adequate remuneration to content producers.[16] While some parts of the 2001 Directive were effective, other parts of the directive were not satisfactory for the current digital market long after its implementation. In 2012, the European Commission (EC) announced that they would be reviewing the 2001 Directive and having stakeholder discussions in light of several issues raised with failed copyright proposals from those in the European Commissioner for Internal Market and Services position.[17] The EC took public comments from December 2013 through March 2014, and published its first report on the state of the EU copyright law in July 2014.[18]

In 2014, Jean-Claude Juncker was elected to the presidency of the European Commission and took office in November 2014.[19] In his campaign position, Juncker saw the potential to improve the EU's financial status by harmonising the various digital marketplaces among member nations to create job opportunities and drive a knowledge-based society. Juncker appointed Estonian politician, Andrus Ansip, as Vice-President for the Digital Single Market within the EC that year, tasked with working with Günther Oettinger, European Commissioner for Digital Economy and Society, and other sections within the EC to come up with the necessary legislative steps that would be required to implement a Digital Single Market.[20] Initial plans for the legislative steps and their potential impact were announced by the EC in May 2015. Ansip stated that by the implementation of a Digital Single Market, they could increase the European gross domestic product by as much as 415 billion per year.[21][22] The European Parliament, following up on a report on the state of European Copyright from a member of the European Parliament (MEP), Julia Reda, that identified several inadequacies of the 2001 Copyright Directive, affirmed support for the EC's goal of a Digital Single Market as well as supporting an initiative with the EP for similar copyright reform.[23] The EC subsequently began working on establishing the legal framework by the end of 2015.[24]

Legislative processEdit

The first draft of the proposed Directive from the EC was issued on 14 September 2016,[25] Following revisions, the Council of the European Union's Committee of Permanent Representatives (COREPER) approved of the EC's legislative directives on 25 May 2018 and prepared to bring the matter to vote in the EP,[26] to reach a final text, without the support of Germany, Finland, the Netherlands, Slovenia, Belgium, or Hungary.[27] The European Parliament Committee on Legal Affairs finalised their amendments to the directive on 20 June 2018 and put them toward the parliament for negotiation.[28]

Members of the European Parliament voted on 5 July 2018 not to proceed to the negotiation stage, but instead to reopen the directive for debate in September 2018.[29][30] There were 318 votes to re-open the debate, 278 to proceed, and 31 abstentions.[31][32]

On 12 September 2018, an updated position of the parliament was approved with the final vote being 438 in favour and 226 against,[33] meaning that trilogue negotiations can start between the European Commission, the Council of the European Union and the European Parliament, with an expected conclusion in early 2019. Should the three groups agree to the final language, then the directive will be sent to governments of the twenty-eight member states to be passed as laws within those countries, with each country formalising certain processes as necessary to meet their existing laws.[34]

Initial trilogue meetings overseen by Romania were scheduled to start on 21 January 2019, however, on 19 January 2019, Romania cancelled these meetings following the rejection of Romania's proposed compromise text by eleven countries: Germany, Belgium, the Netherlands, Finland, Slovenia, Italy, Poland, Sweden, Croatia, Luxembourg and Portugal. With the exclusion of Portugal and Croatia, the other nine countries rejected the compromised text for Articles 11 and/or 13 stating that the measures did not do enough to do to protect their citizens' copyright protections. Romania had the opportunity to revise their text to gain a majority vote, delaying the vote.[35]

The trilogue negotiations were completed on 13 February 2019, the final text still retaining the controversial Articles 11 and 13. At this point, the text will be reviewed by the European Parliament Committee on Legal Affairs, and then presented to the full European Parliament for a vote. Should the vote succeed, then each of the EU's member states have up to 24 months to introduce laws within their own countries to support the Directive.[36]

ContentEdit

Article 3Edit

Article 3 proposes a copyright exception for text and data mining (TDM) for the purposes of scientific research.[37] The COREPER version has both a mandatory and an optional extension.[26]

Depending on whether it acknowledges the public domain status of facts and information, the TDM exception could increase or decrease restrictions compared to the status quo.[38]

Article 4Edit

Article 4 proposes a mandatory exception for the use of copyrighted works as part of "digital and cross-border teaching activities". This article, when implemented, would clarify that educational establishments can make non-commercial use of copyrighted works for illustrative purposes.[citation needed]

There have been worries from the educational sector that the exception proposed in article 4 is too limiting. For example, the sector proposes to broaden the scope of "educational establishments" to include cultural heritage institutions. The most debated part of the article is 4(2), under which the exception would not be available if there are "adequate licenses" available in the market.[39]

The COREPER version has changes to reflect the arguments of the education sector, but still includes the debated article 4(2).[citation needed]

Article 11Edit

Article 11 extends the 2001 Copyright Directive to grant publishers direct copyright over "online use of their press publications by information society service providers".[28] Under current EU law, publishers instead rely on authors assigning copyright to them and must prove rights ownership for each individual work.[40] The version of the directive voted on by European Parliament Committee on Legal Affairs contained explicit exemptions for the act of hyperlinking and "legitimate private and non-commercial use of press publications by individual users".[41]

The proposal attaches several new conditions to the right, including expiry after one year and exemptions for either copying an "insubstantial" part of a work or for copying it in the course of academic or scientific research.[28] It is derived from the ancillary copyright for press publishers which was introduced in Germany in 2013.[40] Press publishing, "whose purpose is to inform the general public and which are periodically or regularly updated", is distinguished from academic and scientific publishing (Recital 33).[26]

Article 12aEdit

Article 12a proposes granting sports event organisers copyright over recordings of their events.[42]

Article 13Edit

Article 13 replaces the "mere conduit" exemption from copyright infringement from for-profit "online content sharing service providers" with a new, conditional exemption to liability. These conditions are the implementation of "effective and proportionate measures" to "prevent the availability of specific [unlicensed] works identified by rightsholders", acting "expeditiously" to remove them, and demonstrating that "best efforts" have been made to "prevent their future availability". The article also extends any licenses granted to content hosts to their users, as long as those users are not acting "on a commercial basis".[26]

The article directs member states to consider the size of the provider, the amount of content uploaded, and the effectiveness of the measures imposed "in light of technological developments". It also mandates an appeals process,[26] and requires content hosts to share "information on the use of content" with its owners, the lack of which has been a point of contention in the past.[43]

Article 13's provisions target commercial web hosts which "store and give the public access to a large amount of works or other subject-matter uploaded by its users which [they] organise and promote for profit-making purposes". The proposal makes explicit that this does not include private cloud storage services, non-profit encyclopaedias (such as Wikipedia), non-profit educational or scientific repositories, nor a variety of other cases.[26]

Article 13b requires websites which "automatically reproduce or refer to significant amounts of copyright-protected visual works" to "conclude fair and balanced licensing agreements with any requesting rightholders".[42]

Article 15Edit

Article 15 aims to allow authors to increase their remuneration in some cases where it is disproportionately low. The proposed articles 14–16, while weaker than systems existing in many member states, would improve the bargaining position of authors and performers.[40]

Associations of authors had proposed a "rights reversion mechanism" which would allow cancelling a copyright transfer agreement proven to be disadvantageous.[44][45]

Other articlesEdit

Other passages of the proposal attempt to clarify the legal status of certain common activities by libraries and of orphan works.[46]

The amendments approved by some European Parliament committees would address issues with the public domain and freedom of panorama.[47]

ControversyEdit

Articles 11 and 13Edit

Articles 11 and 13 of the Directive have drawn a great deal of attention and opposition.

Article 11, referred to as the "link tax", raised concerns that less information and resources would be available through search engines.[48] In their explanatory memorandum for Article 11, the Council describe existing rights enforcement for online use of press publications as "complex and inefficient" and draw particular attention toward the use of news articles by "news aggregators or media monitoring services" for commercial purposes, and the problems faced by press publishers in licensing their work for such services.[26] A study commissioned by the European Commission, which analysed the implementation of similar laws in Germany and Spain (with the latter having, notably, resulted in discontinuation of Google News in that country), found that newspapers actually benefited from the increased exposure (and in turn, ad revenue from traffic) that news aggregation platforms attracted to their online articles, noting that "the German and Spanish cases show that the law can create a right", but that "market forces have valued this right at a zero price".[49][40][50][51]

Article 13, colloquially called the "upload filter" provision, has faced widespread criticism over the possibility that it could create a chilling effect on online expression. Although the article requires only "best efforts" from providers, it is widely accepted by critics and proponents alike that in order to meet the requirement of preventing future availability, larger companies would need to implement content matching technology similar to YouTube's Content ID system.[6][52] Critics emphasise the issue of false positives within such systems, and their inability to account for copyright limitations such as fair dealing (leading, they allege, to a "meme ban").[53] Supporters and third parties point out that YouTube has used Content ID for a decade and yet remains a successful host for content of all kinds.[52][54] Yet, YouTube CEO expressed concerns that the new legislation could shut down the ability of millions of people to upload to YouTube.[55]

Other claims from critics include suggestions that all content providers will be forced to use expensive content filters, that only major U.S. technology firms had sufficient resources to develop such systems,[56] and that outsourcing the task has privacy implications.[57]

Intense lobbyingEdit

The scale of lobbying for and against the directive, and specifically the tactics of those against, has been widely criticised.

The European Parliament said that "MEPs have rarely or even never been subject to a similar degree of lobbying", and cited "numerous precedents of lobbying campaigns predicting catastrophic outcomes, which have never come true".[58] In a blog post (since deleted) the European Commission went much further, saying that "there is ample evidence from respected sources...that ‘Big Technology’ has even ‘created’ grassroots campaigns against the Copyright Directive", and contentiously described those riled by "sponsored messages" from Facebook and Google as "the mob".[59] The Times reported that "Google is helping to fund a website that encourages people to spam politicians and newspapers with automated messages backing its policy goals".[11]

Lobbying in favour of the proposed directive was directed toward the EU itself and was much less visible to the public. Stunts pulled by those lobbying in favour include sending MEPs pamphlets with condoms attached.[12]

Commentators have observed that years of intense lobbying activity served to "crowd out other voices and successfully distort the public debate", and that "toxic" discussions were harming "health dialogue".[12][60]

PositionsEdit

PoliticiansEdit

Support in the European Parliament is led by the European People's Party group and the Progressive Alliance of Socialists and Democrats, the parliament's two largest groups. Major national parties in support include Germany's ruling Christian Democratic Union and their coalition partners the Social Democratic Party, the United Kingdom's ruling Conservative Party and opposition Labour Party, and Poland's main opposition party, Civic Platform.[61][62]

The directive's rapporteur, Axel Voss, is German MEP and a member of the EPP.[63] Voss rejects critics' arguments against the directive, and in particular describes talk of censorship as "unjustified, excessive, objectively wrong and dishonest". He points out that content filtering technology has been in use on YouTube for a decade without having ever sparked an "anti-censorship campaign",[52] and accuses "big [internet] platforms" of mounting a "fake news campaign".[64] Tom Watson, a member of Parliament of the United Kingdom and the deputy leader of the Labour Party, said, "we have got to secure for the workers... the full fruits of their industry. Google are trying to prevent that from happening".[62]

Opposition in the European Parliament is led by populist parties including Poland's ruling Law and Justice party, Italy's ruling Five Star Movement/Lega Nord coalition, and the UK Independence Party. Other opponents include a large number of much smaller parties at either end of the political spectrum.[61][65] Notable among these is the Pirate Party Germany, whose sole MEP Julia Reda has been an outspoken opponent of the proposal.[66] She describes the efforts behind the law as large media companies trying to force "platforms and search engines to use their snippets and to pay for them".[67] UKIP leader and MEP Gerard Batten said that the proposal may "destroy the capacity for free speech on the internet and social media".[68] Batten further noted that an international agreement, and not a EU directive, was needed to protect "the legitimate rights of creators, authors and innovators", whilst not stifling "free speech and information dissemination".[68]

It has been rumoured that during the European Council's private vote to approve its negotiating position in March 2018 the ambassadors of Germany, Finland, the Netherlands, Slovenia, Belgium and Hungary either abstained from voting or voted against the proposal.[69] However, MEPs of each of those countries' governing parties went on to largely or wholly support the directive in parliament.[61]

JournalistsEdit

Newspapers in open support of the directive pejoratively label some of those opposed as "the largest, richest corporate entities in the world". In an editorial, the Financial Times stated that "YouTube controls 60 per cent of all streaming audio business, but pays only 11 per cent of the revenues that artists receive".[70] Others newspapers focus on Article 11, arguing that the reform is a battle between European media pluralism and monopolistic foreign Internet giants.[71][72] A variety of mainstream newspapers have reported that some Internet platforms are lobbying against the bill to support their financial interests.[73]

A group of nine major European press publishers including Agence France-Presse, the Press Association, and the European Alliance of News Agencies issued a letter supporting the proposal, describing it as "key for the media industry, the consumer’s future access to news, and ultimately a healthy democracy". In the letter, they cite existing state support for struggling news media and argue that it should instead be provided by the "internet giants" which have been "siphoning off" advertising revenue.[74]

The International Federation of Journalists, a union, is in favour of the proposals but complained about late amendments which made remuneration of journalists dependent on "contractual arrangements" and "laws on ownership". While describing the proposals as "an achievement for authors overall" and "good news for the industry and for authors in some sectors", they described the amendments as "bad for journalism and bad for Europe" and called on the EU to "decide wisely and reject any discriminatory provisions".[14]

Critical accounts of the proposal were published in the summer of 2018 by major newspapers in Austria,[75] France,[76] Germany,[77][78] Ireland,[79] Italy,[80][81] Poland,[82] Spain,[83] and Slovakia.[84]

Technology companiesEdit

Google, the owner of video-sharing website, YouTube, has opposed the directive since its first inception in 2016, when they argued that the proposals would "turn the internet into a place where everything uploaded to the web must be cleared by lawyers".[85] In 2018 the company encouraged news publishers in its Digital News Initiative, members of which are eligible for grants from a €150m fund, to lobby MEPs on the proposals.[86] YouTube chief executive officer, Susan Wojcicki, urged content creators on the platform to take action to oppose the legislation, as it "poses a threat to both [their] livelihood and [their] ability to share [their] voice with the world", and stressing that their Content ID system was intended to help assure fair management and payments for copyright holders already without government intervention.[87] Wojcicki later wrote that any company implementing the necessary protocols to meet the directive would be a significant financial burden, and for a company the scale of YouTube, "the potential liabilities could be so large that no company could take on such a financial risk".[88]

Some organizations that led campaigns opposing the directive, including Copyright for Creativity and the Copia Institute, have been funded by American technology companies like Google.[12][89] These campaigns have been promoted by other American technology organizations, including the Wikimedia Foundation and Reddit.[90] Facebook is also opposed, arguing that the proposal "could have serious, unintended consequences for an open and creative internet".[91]

Jimmy Wales, co-founder of Wikipedia, raised concerns regarding the costs and effectiveness of upload filters and the negative effects on free speech online.[92][93]

Public protestsEdit

A number of public protests have been held in opposition of the proposed directive, mainly concerning Article 13. Two sets of EU-wide events in August 2018[94] and January 2019[95] failed to attract significant numbers. Organisers did not release their own figures, but supporters of the proposals who analysed photos from the August events estimated that there had been at most 800 participants across the entire continent, with an average of 30 per location.[96]

However, a February 2019 protest organised by German YouTube stars in Cologne attracted a significant crowd despite having only been announced two days earlier. Organisers made an unverified claim that 1,000 were in attendance in the same location.[97]

A Change.org petition has gathered more than 4.7 million unverified signatures as of 18 February 2019, of which roughly 1.3 million are from Germany.[98][99]

NGOsEdit

 
The banner block on Italian Wikipedia. Other blocked Wikipedias had analogous messages.

145 organisations from the areas of human and digital rights, media freedom, publishing, libraries, educational institutions, software developers, and Internet service providers signed a letter opposing the proposed legislation on 26 April 2018.[100] Some of those opposed include the Electronic Frontier Foundation, Creative Commons, European Digital Rights,[101] the Max Planck Society,[53] GitHub,[102] various Wikimedia chapters,[101] and the Wikimedia Foundation (the parent organisation of Wikipedia).[103] The Italian Wikipedia,[104][105][106] later followed by others including the Spanish,[105][107] Estonian, Latvian, Polish,[105][106] French and Portuguese ones,[108] blacked its pages for readers on 3–5 July, whereas, the English Wikipedia added a banner asking the readers in Europe to contact their representatives in the European Parliament.[104]

 
The banner on the English Wikipedia seen from a German IP address

Human Rights Watch and Reporters Without Borders were among signatories of an open letter opposing Article 13.

PublishersEdit

A campaign organised by the European Grouping of Societies of Authors and Composers collected over 32,000 signatures from creators including David Guetta, Ennio Morricone, Jean-Michel Jarre, and the band Air.[109] Other supporters include musicians Paul McCartney and James Blunt,[110] author Philip Pullman (as head of the Society of Authors),[111][112] the Independent Music Companies Association,[8] and German publisher Axel Springer.[113]

Publishing trade bodies similarly claim that a "bad-faith" "misleading campaign", also called a "disinformation campaign", is being carried out. They specifically name Wikipedia and Google as orchestrators,[8][9][10][114][115] claiming that Wikipedia and other platforms engaged in "inacceptable [sic] misleading campaigns [...] to influence MEPs" and pointing out that Google spent €4.5 million lobbying in Europe during 2016,[116] is among the sponsors of the Electronic Frontier Foundation, another leading opponent,[117] and was seen asking its partners to lobby against the reform.[86] These estimates have been called "flawed" and that how much Google has spent on lobbying on this issue is not possible to determined.[12] These estimates were also released by the music industry as a press release just before the JURI voted.[12]

The publishers argue that licensed content providers such as Spotify and Netflix are also negatively affected by the current copyright regime, which they say benefits user-driven platforms such as YouTube (owned by Google) and Facebook.[115][118] They claim reports of spambots flooding MEPs with so many anti-copyright emails that they can no longer carry out their work.[8][10][115]

While some publishers support the proposal, European Innovative Media Publishers, a publishing industry lobbying organisation, was founded in 2015 specifically to oppose Article 11.[119]

Academic publishersEdit

The proposal is generally supported by academic publishers including the International Association of Scientific, Technical, and Medical Publishers.[120] This group has nevertheless criticised the proposal for excluding scientific publishers from the provisions of Article 11, describing the exclusion as "unwarranted and potentially discriminatory".[121]

The European Council for Doctoral Candidates and Junior Researchers opposes the proposal on the grounds that Article 13's exemption for non-commercial groups does not cover all scientific repositories, and cites the Horizon 2020 project as an example of commercial work in the sector. They also generally agree with the claims of other opponents.[122] The Scholarly Publishing and Academic Resources Coalition, an open access advocacy group, opposes the proposal in principle.[120]

Academic criticism has emphasised concern about the effectiveness of Article 11's impact on the readership of online publication and of Article 13's obligations on service providers that will "benefit big players".[123][124][125] SPARC Europe called for the removal of Article 11, arguing that it would "make the last two decades of news less accessible to researchers and the public, leading to a distortion of the public's knowledge and memory of past events", and if extended to academic publishing, would "in effect ask readers to pay publishers for access to works for which authors, institutions or research funders had already paid publishers to make freely accessible to all under 'open access' terms".[123][126]

Prominent individualsEdit

Individuals who have publicly opposed the law include comedian Stephen Fry; author Neil Gaiman;[127] Tim Berners-Lee, creator of the World Wide Web; and Vint Cerf, co-inventor of the Internet protocol suite.[92]

Case lawEdit

In 2012, the European Court of Justice ruled that existing EU law "must be interpreted as precluding a national court from issuing an injunction against a hosting service provider which requires it to install a system for filtering...with a view to preventing works from being made available to the public in breach of copyright", arguing that such an injunction "could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications".[128]

A similar view can be seen in Case C-160/15 GS Media BV v Sanoma Media Netherlands BV, Playboy & Britt Geertruida Dekker and in Case C-70/10 Scarlet Extended SA v SABAM, BEA Video, BEA Music & ISPA.[citation needed]

Human rightsEdit

The Office of the United Nations High Commissioner for Human Rights raised concerns that the proposal was incompatible with the 1966 International Covenant on Civil and Political Rights. In a public letter, special rapporteur, David Kaye, argued that the proposal's reluctance to pin down precise obligations on content hosts created "significant legal uncertainty" inconsistent with the covenant's requirement that any restrictions on freedom of expression be "provided by law". He concluded that this could lead to "pressure on content sharing providers to err on the side of caution". Kaye also criticised the lack of "prior judicial review" inherent in the system, and the similarly extrajudicial nature of its appeals process.[129]

The letter also raised concerns regarding the lack of protection for non-profit groups, although such groups had been excluded from the proposal's provisions prior to its publication.[26] The EU was invited to respond within 60 days.[citation needed]

See alsoEdit

ReferencesEdit

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