How to Write Bad Copyright Laws – Leaked Proposal for a New EU Copyright Directive

The EU Copyright regime has been subject to calls for reform for at least since 2008 (Green Paper). The reform process began in earnest in 2014 with the publication of thepublic consultation. The 2015 Digital Single Market Strategy put copyright high on the list of future interventions, promising a draft proposal by the end of 2016. The 2015 Copyright White Paper outlined the pursued aims in more detail, quoting wider access to content, more adapted exceptions, a well-functioning marketplace and an effective enforcement system. Few things in either the Strategy or the White Paper indicated a very radical approach except, perhaps, calls for a ‘follow-the-money’ mechanisms, which was neither defined nor properly explained.

A draft of the promised new Copyright Directive had been leaked a couple of days ago and so has the impact assessment that led to it. The final text of the proposal (which may be different from documents produced here) will be subject to co-decision procedure and intense lobbying both in the Parliament and the Council and is likely to get changed. Nevertheless, assuming that this is the starting position, what do these documents show about the proposed vision?

The proposed directive is meant to complement the Database Directive, Copyright Directive, Rental and Lending Rights Directive, Software Directive, Orphan Works Directive and the Collective Management Directive and not replace them.

It contains five titles, three of which bring new concepts in. Title II, adapting some exceptions and limitations to the digital cross-border environment, introduces new exceptions for text and data mining, use of works for teaching activities and preservation of cultural heritage. Proposed Article 3 allows text and data mining by research organisations of works to which there already is lawful access. Any contractual provision that says otherwise shall be ineffective. Text and data mining are defined as automated activities that generate patterns, trends and correlations. A typical text and data mining context is copying small amounts of material from journals and reports and assembling them for further use. A similar exception had already been introduced into UK law in 2014, although that one applies to non-commercial uses only whereas the Draft is silent on the commercial side of mining. Article 4 allows use of digital works for non-commercial teaching purposes only. Member States are allowed flexibility in implementing this provision. Finally, Article 5 allows cultural heritage institutions to make copies of works in their permanent collections for purposes of preservation only. Overall, the exceptions offered are welcome but exceptionally modest. Even a very cursory look at the literature will reveal a need for a far wider reform of the exceptions regime which needs to be reformed not only in terms of its largely voluntary nature but also its scope and depth.

Title III deals with licensing practices and wider access to content. It contains three relevant provisions. Articles 7 – 9 deal with uses of out-of-commerce works by cultural heritage institutions, specifically with licenses for non-commercial purposes that collective rights management organisations give to cultural heritage institutions for out-of-commerce works. These are relatively uncontroversial measures but are also relevant in a relatively narrow context. Article 10 attempts to cover agreements for making audiovisual works available to on-demand platforms (only partially covered by the above-mentioned Collective Rights Management Directive), but only says that such parties “may rely on the assistance of an impartial body”. This is a bizarre addition. Nothing prevents the parties from relying on such assistance at present and it is not clear how such a reminder is supposed to help anyone.

Title IV relates to well-functioning copyright marketplace. Article 11 introduces what the media (justifiably) calls the “link tax”. The article obliges Member States to provide publishers of news publications (defined very broadly in the Draft) with the rights contained in Articles 2 (reproduction right) and 3(2) (right of communication of the public) of the Copyright Directive for the duration of 20 years. This is essentially the creation of a completely new, previously non-existent neighbouring right. This measure is aimed at 3rd party aggregators (mainly but not exclusively Google) who show snippets of news and/or link to them. The heavily criticised idea would crete strains between USA-based aggregators and the EU and has potential negative freedom-of-speech implications. It seems to protect, for no apparent economic reason, the diminishing revenues at news companies at the expense of arguably more innovative models and is almost certainly going to be difficult if not entirely impossible to implement.

Most surprising, and most damaging, is Article 13 which covers uses of protected content by information society services (ISSs). It demands ISSs which store large amounts of works uploaded by users (i.e. user-generated sites) to take “appropriate and proportionate measures” to ensure that agreements with the rightholders are functioning, and to prevent the availability of works not covered by these agreements – including through use of “effective content identification technologies”. ISSs must provide rightholders information on such technologies. The provision, which in its present form is nothing other than a demand for monitoring, is in direct contravention of Article 15 of the E-Commerce Directive which explicitly prohibits monitoring. The drafters of this proposal are either not familiar with the 15-year-old largely uncontroversial article (nor, for that matter, with the content of the CJEU Sabam case) or are chosing to deliberately ignore it. Either is very alarming. The mechanism proposed here, even if the discrepancy is completely ignored, is unjustifiably tilted in favour of the rightholders. Further to that, only very large operators (such as YouTube) would have the financial and organisational power to install “effective content identification technologies”.

The proposed text has already been subject to heavy criticism (see here and here). In my own opinion, such criticism is entirely justified. The produced text is badly written, is ill-conceived and based on poorly tested ideas. Moreover, it contradicts the already established and well-functioning EU law (Copyright Directive, E-Commerce Directive, CJEU case law). The sooner it is changed (or abandoned altogether), the better.

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