- proposed Directive on Copyright in the Digital Single Market,
- proposed Regulation on copyright in online broadcasting,
- two proposals (a directive and a regulation) affecting disabled users
A new neighbouring right for news publishers has been created. In essence, any use of news produced by news sites that is not otherwise covered by exceptions would need to be cleared. Although the preamble 33 does say that the new right “does not extend to acts of hyperlinking which do not constitute communication to the public” the Proposal does not define when a hyperlink (and the potential accompanying snippet of news) is a communication to the public. The present case law (see my post on the new GS Media case here) is not sufficiently clear on that point either. At present it is possible to interpret it to mean that linking to a legally available copyrighted news article is not a new communication to the public. On the other hand, the language used in the GS Media case, as well as the fact that GS Media has been decided before the Proposal was made public, lead us to believe that hyperlinking og a Google News or Twitter-type site, with the news snippet being displayed, will be an act of communication to the public. This is hugely detrimental to the development of a free, democratic and efficient Internet. In addition to that, disastrous experience from Spain and Germany, prove without doubt, that such ideas are counterproductive.
Content-filtering of user-generated content has also been proposed in Article 13. The proposal applies to “information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users ”. The proposal here demands that information society service providers enter into licensing agreements with rightholders and introduce adequate content recognition technologies. The idea is that licensing agreements and filtering need to be introduced where information society service providers do not benefit from the hosting exception from Article 14 of the E-Commerce Directive (Recital 38 of the Proposal). This might signify that the intention is not to force licensing and filtering in all cases where material is hosted but only where ISSs are performing an act of “communication to the public” or, in other words, where they are not playing an “active role” and, at the same time, do not qualify for the safe harbor of Article 14. It is not explained in the Proposal what these situations might comprise since typical user-generated sites do qualify for Article 14 safe-harbor. Moreover, Article 15 of the E-Commerce Directive says that Internet Service Providers are under no obligation to actively monitor content on the Internet. In addition to that, the CJEU SABAM case (interpreting the E-Commerce, the Copyright and the Copyright Enforcement Directives) says that filtering cannot be indiscriminatory. Contrary to both of these, the proposal demands that ISP
prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate.
The proposed Article, in its present form, is both incoherent and contrary to the existing EU law (on why it may have serious consequences for the “communication to the public” see here). There is no reason whatsoever why the Commission should set out to change the regime which has functioned relatively well. Copyright violations which are properly notified to the user-generated sites in the present regime are already covered in the E-Commerce Directive. In addition to that, EU directives as well as CJEU cases accept the ability to use national restraining injunctions. It makes no sense to demand the introduction of expensive content recognition technologies which only large companies can properly pay for and implement.
The third part of the proposal relates to cross-border online broadcasting. The general idea here is to establish a regime where broadcasters (in ancillary online services which are broadcast simultaneously with terrestrial transmissions) only need to clear the rights in the state where the broadcaster is established. This does not apply to video-on-demand, though, which is still under the general system of clearances.
Overall, the proposed changes seem mostly incoherent and do not address the reforms which are really needed (copyright exceptions, technical measures of protection, collective rights management…)