C4C regrets that the Commission does not seem to be considering the following elements:

• updates to the other exceptions (many of which are drafted in obsolete terms) and also making them mandatory (Recital 5);
• an exception for freedom of panorama;
• an exception for remote access to library catalogues; and,
• the introduction of a flexible norm complementing the list of exceptions.

C4C is deeply worried about the Commission moving forward with the introduction of ancillary copyright at EU level (Article 11 – Recitals 31-35). We have concerns regarding the underlying logic of such an approach where, against a perceived failure from a commercial nature, the proposed remedy is one that creates new rights under the ‘copyright’ umbrella as opposed to a more ‘ex post’ approach. See our infographic.

In short:

• The right itself should not be introduced, as it does not deliver positive results (see its failure in Spain and Germany);
• Article 11 §4: A retroactive right for 20 years on news items is simply absurd and disproportionate in light of the economic reality;
• Considering that hypothetically throwing more money at news publishers will improve journalistic quality seems a bit of a shortcut at best; and,
• Making new companies subsidise an old business model is not known to be an incentive for the traditional players to adapt to the new digital realities.

C4C has reservations about the Commission’s reasoning that publishers should be able to claim a share of the compensation for uses under exceptions (Article 12 – Recital 36).

In short:

• this seems to contradict the judgement of the Court of Justice of the European Union (CJEU) in the Reprobel case (C-572/13). The CJEU confirmed that the rationale of the fair compensation requirement is intended to compensate for the harm suffered by right holders, and concluded that publishers are not subject to any harm by, in this case, the reprography and private copying exception.
• As a result, this provision does not create benefits for creators, which are ‘the forgotten’ stakeholders in this review (except for minimal contractual safeguards, left at the mercy of Member States).

C4C considers that the Commission’s intentions in this area go beyond the scope of a copyright review, as they fundamentally affect both the e-Commerce Directive and the IPR Enforcement Directive (Article 13 – Recitals 37-39).

In short:

• Article 13 & Recital 38: The text considerably expands the definition of communication to the public to any act of uploading and sharing through online service providers; and,
• C4C fears that the Commission intentions will force all intermediaries dealing with user uploaded content, including cloud services, Wikimedia, etc., to be compelled to:

1. negotiate licences with right holders; and,
2. implement content filtering technologies. We wonder how this can be achieved without a reform of Article 3 of the InfoSoc Directive (see here), Articles 14 and 15 of the e-Commerce Directive, and Article 3 of the IPR Enforcement Directive.

We encourage you to read this analysis by Martin Husovec from Tilburg University, and see also our infographic.

Although having an exception on text and data mining is positive, some elements are worrisome (Article 3 – Recitals 8-13).

In short:

1. Article 3 §1 & Recital 11: the beneficiaries of a text and data mining exception should not be limited to ‘research organisations’, to avoid crippling any opportunities for start-ups and individual researchers in this area; and,
2. Article 3 §3 & Recital 12: allowing academic publishers to introduce random measures to protect the ‘security and integrity’ of their network could allow them to arbitrarily block access for researchers trying to conduct text and data mining. Safeguards in line with those put in place in the context of ‘traffic management’ by telecom operators could be considered (see Article 3 § 3 of the Telecoms Single Market Regulation [EU 2015/2120]).

C4C furthermore welcomes the Commission’s intention to make this a mandatory exception and to not limit it to non-commercial uses only. See our infographic.

C4C applauds that the Commission steps up to ensure more transparency and appropriate remuneration for creators (Title IV Chapter 3 – Recitals 40-43).

However, this needs to be ensured throughout the whole value chain in the various creative industries. We stress the need to focus on the whole of the value chain, because the Commission has focused on the so-called ‘value-gap’ (Recitals 37-39) in reference to online services, without acknowledging that creators often do not get a fair deal form their recording companies or publishing house in the first place (see here).

C4C welcomes the fact that Commission considers collective agreements for digitisation and dissemination of out of commerce works (Article 7-9 – Recitals 23-28). The Commission’s intention seems to model this on the Scandinavian “Extended Collective Licensing” (ECL) scheme, allowing collecting societies to assign non-exclusive licenses for non-commercial use of out of commerce works, even for non-members. This would enable works to be shared and accessed across the EU.