24 Feb 2017
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IMCO Opinion on Copyright in the Digital Single Market: Things are looking better, but the devil is still in the details

As mentioned in our previous blog post on the CULT Opinion, the adoption of the Directive on Copyright in the Digital Single Market (the copyright review) requires several European Parliament (EP) Committees to draft Opinions that will then need to be ‘taken into account’ in the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee.

The draft Opinion [PDF] on the copyright review from the Internal Market and Consumer Protection (IMCO) Committee was published today. The Rapporteur of the draft Opinion is MEP Catherine Stihler (S&D, UK) and we must say that her proposal goes a long way in re-tipping the balance between the interests of rightholders in this debate and those of the rest of the world, which includes in no particular order all Internet users, SMEs, the education, research and cultural heritage institutions and creators. So just for that, we opted for a joyful dance GIF.

But not all is rosy in this proposal, as copyright is a topic where the devil often lies in the details.

Filtering of user uploaded content (Article 13)

What we like:

  • The IMCO Committee has traditionally always been the place where MEPs are most aware of the positive impact the Ecommerce Directive has brought to the development of the Internet and more generally to the EU and its citizens in general. MEP Stihlers’ draft Opinion reflects this knowledge in a very positive manner by ensuring that the proposed wording of Article 13 does not neuter the Ecommerce Directive (AM28 & 63), and recognizes the fact that users are the ones uploading content on these platforms (AM62) .

  • MEP Stihler seems to be one of the people that noticed that online platforms brought good things to users and creators by ‘allowing for diversity and ease of access to content’ (AM23), something that was not exactly oozing out of the EC proposal. I guess being in a Committee that represents consumers can explain that one is a bit more in touch with the daily reality of European citizens.

  • We are happy to see ‘user representatives’ included in any discussions related to user uploaded content (AM65), as one can only guess how users’ interests would be taken into account if such discussions were left only to private companies.

What worries us:

 

  • We would have preferred MEP Stihler to have displayed the same courage as she did with the press publishers’ right (Article 11) and to propose an upfront deletion of Article 13 and all of its Recitals. We do welcome the deletion of part of the EC’s proposed language as a step in the right direction (AM25, 26 & 27) but as stated by leading academic copyright experts in their recent open letter [PDF], ‘Article 13 needs radical reform that may not be achievable through amendments within its current structure. We would advise removing the Article from the Proposed Directive, and focusing attention on improving the procedure for “notice and takedown”’.

  • What’s with the licensing and compensation fascination as a general approach to online content (AM24 &63)? Most of the uploaded content on online platforms is done so directly by the rightholder (=my daughter doing a mash up) and with totally no expectation of a compensation. It is therefore important to mention that the copyright protected works that are of potential concern are those that are ‘unauthorized’, i.e. that have been uploaded without the authorization of the rightholder, where such an authorization is required.

  • ‘Fair and balanced’ licensing agreements always give us a fuzzy feeling, much like pictures of pandas, but they honestly seem like difficult criteria to assess knowing the general tension that exists between the stakeholders involved.

Press publishers rights aka ancillary copyright (Article 11)

What we like:

  • The deletion of the provision and its Recitals (AM21, 22, & 61), whilst recognizing the need to ensure the sustainability of the publishing industry (AM20), with a robust justification for this deletion.

  

What worries us:

 

  • Nothing: deletion is just what the doctor ordered, and what a substantial part of the academic world has just recently asked for in an open letter [PDF].

Text and Data Mining – TDM (Article 3)

What we like:

  • The extension of the scope of beneficiaries of the TDM exception to ‘any individual or entity, public or private, with lawful access’ but with the end of the sentence generating a worry (see below – AM29).

  • The removal of ‘for the purpose of scientific research’ (AM31) as a requirement to benefit from the TDM exception.

  • The recognition that not only contractual bypasses of exceptions must be prohibited, but also technical protection measures that can as easily impede the use of an exception (AM32). We just regret that this dual prohibition is not enshrined as a general principle applying to all existing and future exceptions and limitations of the EU acquis as we do not see the purpose of crafting ‘ideal’ exceptions if private companies can render them useless through either contractual provisions or technical measures.

What worries us:

  • The loophole regarding the security and integrity measures that can be used by rightholders has actually worsened with MEP Stihler’s proposed amendment to Article 3 (3) (AM33), as no requirements of proportionality, necessity, efficiency, etc., are put in place.

  • The extension of the scope of beneficiaries of the TDM exception to ‘any individual or entity, public or private, with lawful access to mine content’: isn’t legal access to the content the criteria that should be upheld? (AM29)

User Generated Content – UGC (Article 13a new)

What we like:

  • MEP Joulaud surprised us by adding a UGC exception (nothing personal: just that he is in the CULT Committee), and this pleasant surprise is now becoming a habit it seems, with MEP Stihler also putting one on the table (AM66).

  • The exception proposed in this draft Opinion is clearly mandatory, a pre-requisite for any exception that applies to online behaviour.

What worries us:

  • The criteria for a user to benefit from this new exception go beyond the three-step test required by the Bern Convention and are not obvious to interpret (AM66). This is not exactly ideal in terms of legal certainty for users and could lead to very diverging applications across Member States depending on the interpretation given to  ‘the use of the new work is done solely for non-commercial purposes’ (sub b), the inclusion of the source (sub c) and the criteria of ‘substantially’ differentiated from the original work…Looking at this cumulative requirement, I guess my kids posting a meme should still worry me!

Research, education and cultural heritage (Art 4-9)

What we like:

  • The recognition that ‘public-private’ partnerships are part of the research landscape and the need to ensure these are not stifled by commercial/non-commercial type considerations (AM1).

  • The acknowledgment that education can be provided by a variety of organisations, including libraries and cultural heritage institutions (AM4 & 5), that cultural heritage institutions fulfil a variety of general interest missions (AM30 & 37) and that their work needs to be enabled, including where it requires cross-border partnerships(AM9, 11 & 41). It is refreshing, though surprising, to see that MEP Stihler has hence been more conscious of the culture and education dimension of this dossier than her colleague MEP Joulaud, from the CULT Committee!

  • The reminder that according to established copyright principles, compensation mechanisms (such as levies) ‘should be limited to cases where there is a risk of unreasonable prejudice to the legitimate interests of rightsholders’ (AM6 & 41). 

  • The introduction of the e-lending issue faced by libraries, which was put aside as a hot potato by the European Commission under the pretense that a CJEU case was pending (other parts of the EC proposal seem to be less scrupulous in following CJEU case law so why the sudden shyness, one could wonder?) (AM13 & 47)

  • The extension of Article 4 to teaching or scientific research‘ (AM36) and the repetition of the prohibition of contractual bypasses of the exception granted under Article 4 (AM38), 5 (AM44) and 5c (new) (AM47), though oddly without the addition of the prohibition of technical measures, as MEP Stihler rightfully added for TDM.

Further Reading