08 Jun 2017
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IMCO Vote on Copyright in the DSM: crying tears of…?

Today, 8 June, the Internal Market and Consumer Protection (IMCO) Committee voted on Copyright in the Digital Single Market [2016/0280(COD)]. IMCO was the 1st Committee to vote on the file, and is setting the direction for the other votes in the next weeks in the Culture and Education (CULT – 21 June), Civil Liberties, Justice and Home Affairs (LIBE – 29 June) and Industry, Research and Energy (ITRE – 11 July) Committees. The vote in the lead Legal Affairs (JURI) Committee will only take place after the summer break, and is currently scheduled for 28 September.

The IMCO Committee adopted its Opinion with 19 votes for, 7 against and 6 abstentions. It seems that the Members of the GUE/NGL and EFDD Groups failed to show up for the vote, whilst half of the ECR Group MEPs were also missing, as many of them are probably caught up in the UK elections vote taking place today. This resulted in a lot of the progressive and good amendments being rejected with tight votes. Luckily, the extremely harmful ‘alternative’ EPP Group compromise amendments that MEP Pascal Arimont (Belgium) tried to force down everyone’s throat did not make it in the end, as some common sense did creep into the debate.

So what’s the outcome?

The press publisher’s right (Article 11) is lava

The current trend on the Internet is a revival of the kid’s game ‘The floor is lava’, whereby if someone shouts that sentence at you, you have 5 seconds to get your feet off the ground in order not to get burnt. The result on Article 11 feels like a lot of MEPs  thought today was a good day to introduce the game in European Parliament votes as the end result of all the pulling and shoving between the Rapporteur’s proposal to delete Article 11, supported by every political group except the EPP Group, and the alternatives put forward by EPP Shadow Rapporteur MEP Arimont to put Article 11 on steroids resulted in … no amendments getting voted through, which means that the IMCO Committee decided to stick to the European Commission’s initial text, which is flawed as explained in our infographic.

However, some amendments were adopted to the Recitals linked to this provision, with mitigated results.

On the positive side:

  1. One of the major flaws of this provision was corrected, as the IMCO Committee decided to delete the retroactive application of this new neighbouring right as they adopted the Compromise Amendment on Article 18.
  2. EPP MEPs Eva Maydell (Bulgaria) and Antanas Guoga (Lithuania) their proposal to protect referencing systems, such as hyperlinks, from the scope of Article 11 were adopted.

The bad news: The IMCO Committee adopted recitals which heavily criticise digital platforms, such as news aggregators and search engines’ impact on press publishers, instead of recognising their added value to a pluralistic media sector. An amendment suggesting the extension of this right to ‘print’ publications also slipped through the cracks, as well as the addition of a reference to the obscure Rental and Lending Directive.

Text and Data Mining (Article 3): one step forward, two steps backwards

On the text and data mining (TDM) provision, a minimal extension to the scope of beneficiaries was agreed, but this small step forward is overshadowed by restricting the content that can be mined to only legally acquired content, which raises the question of freely accessible content. But then again, IMCO did not put much focus on this area so the job of fixing this very unambitious provision will need to be done in the other Committees.

The censorship filter (Article 13): putting checks and balances to the benefit of consumers…and the Internet

On the filtering of user uploaded content (a.k.a. the ‘censorship filter‘) the different political groups reached a sensible compromise by putting to vote the proposals for Article 13 and its Recitals that were proposed  by rapporteur Michal Boni in the Committee on Civil Liberties, Justice and Home Affairs (LIBE). MEP Boni’s proposal whilst not perfect, clearly tries to ensure that the provisions of Article 13 do not disrupt the existing legal framework and established CJEU case law, whilst taking a technologically neutral approach and making sure users are not forgotten in this equation (see our full analysis here).

The adoption of these amendments give a clear signal from the IMCO Committee, which is an associated Committee on Article 13, to the lead Legal Affairs (JURI) Committee on which direction to take and also provides clarity on the EPP Group’s position.

Other good news: user-generated content and freedom of panorama exceptions

Remembering that it says ‘consumers’ in its denomination, the IMCO Committee managed to agree to include an exception for user generated content (UGC) in its Opinion, as well as a fully fledged freedom of panorama exception!

Conclusion

Rapporteur MEP Catherine Stihler (S&D, UK) must be commended for the excellent job she did under difficult circumstances (including having male colleagues shout at her at the end of a vote, which is not exactly a display of good manners in our book), as well as MEP Boni for delivering a sound compromise position on the censorship filter. But a lot of work still needs to be done and every MEP in this dossier will need to take her/his responsibility and vote for the outcome to truly reflect all views. Not showing up is simply not an option when more than half of the good amendments get rejected due to tied votes!

[Ed. Note: This blog post first appeared on CopyBuzz.com]

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02 Jun 2017
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LIBE Opinion on Copyright in the Digital Single Market: Trying to put boundaries on the Censorship Filter

Following the CULT and IMCO Opinions (see our blog posts respectively here and here) and the Report by the lead Committee of the EP on this matter, namely the Legal Affairs (JURI) Committee (see our blog post here), the last Opinion of the EP has now been published, namely the one by rapporteur Michal Boni of the Committee on Civil Liberties, Justice and Home Affairs (LIBE).

As often happens when a report is published last, it builds on all the views that are out there and, in the case of MEP Boni, tries to offer a pragmatic middle ground. In this case, the LIBE Rapporteur has limited himself to examining Article 13, aka the Censorship filter, as he considers this is a provision that needs to be looked at in light of its impact on the fundamental rights of users.

A lot of positive thoughts…though deletion would have been the best option

 

The Opinion clearly tries to ensure that the provisions of Article 13 do not disrupt the existing legal framework and established CJEU case law, whilst taking a technologically neutral approach and making sure users are not forgotten in this equation:

  • The reference to specific technologies such as’content recognition technologies’ is removed (AM9).
  • The upholding of the principles of the E-commerce Directive (and especially of Art 15 ECD which prohibits general monitoring obligations) and the need for measures adopted by companies to respect the fundamental rights of users is clearly set out (AM3 & 9). 
  • The need for Member States to ensure users have access to a court or another competent authority (AM12), combined with the responsibility of rightholders in case of counter claims is also explicitly stated (AM4). After all, if they are the one claiming rights over content, they are the only ones capable of responding to such a counter claim, not the guy in the middle.
  • The involvement of user representatives in the definition of best practices to implement this provision is also welcome, as it counter balances the industrial interests of the rightholders and online platforms (AM13).

Room for improvement…especially considering deletion would have been the best option

 

But as always in the legal drafting arena, the devil is in the detail:

  • The scope of application of the censorship filter, whilst more limited than in many other proposals, still comprises an incoherency in its drafting:
    • Indeed, Article 13 is now set to apply to the situation ‘Where information society service providers offer users content storage services and provide the public with access to content’. There is however no link established between the storage of content and the content to which access is provided.
    • This is however easily remedied by adding one small word, namely: ‘Where information society service providers offer users content storage services and provide the public with access to such content
  • Whilst reminders of the respect of fundamental rights of users never hurt, it must be noted however that the Charter of Fundamental Rights imposes obligations on Member States, not on private entities such as online platforms. As these voluntary agreements fall in the private space, the ‘respecting fundamental rights’ element could prove to be wishful thinking or a carrot with no stick.

Conclusion: Hell is paved with Good intentions

 

Whilst it is clear that MEP Boni has, in the same vein as his colleague MEP Comodini Cachia, tried to bring back some common sense in this debate, it is a bit disappointing that the one Committee of the EP tasked with protecting the fundamental rights of users has not taken the only stance that makes sense from a principles point of view, which is to request the deletion of this ill-thought provision.

In our May 2017 open letter [PDF] to the Council and the European Parliament, C4C and 63 signatories reiterated this fact: ‘Article 13 should be removed from the copyright negotiations and dealt with in appropriate contexts. We strenuously oppose such ill thought through experimentation with intermediary liability, which will hinder innovation and competition and will reduce the opportunities available to all European businesses and citizens.’

But at least the intentions of MEP Boni are laudable, as are his efforts to remove the most toxic aspects of what the European Commission had put on the table. So for that, our thanks!

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COMMUNIA – Last EP Committee opinion on copyright reform balances civil liberties with political reality