Yesterday the European Parliament approved MEP Felix Reda’s evaluation report of the copyright directive. With the report the European Parliament gives a clear signal that the European Copyright rules need to be modernised. This puts the ball in the court of the Commission, which needs to come up with concrete legislative proposals for a copyright reform – which it promised to deliver before the end of the year. Both Commissioners Oettinger and Ansip have reacted positively to the Report, while its author, Pirate Party MEP has expressed the hope that the Commission’s proposal will be more ambitious than the EPs report, which has been watered down considerably through a large number of amendments.
So while the report is a clear signal that MEPs want to see a modernisation of the EU copyright rules that date back to 2001, it is much less clear what shape these modernised rules should take. Most of the report is based on compromises that MEP Reda has brokered between all major political groups represented in the EP. As a result, the report does not outline a clear plan for reforming copyright. Still, it is possible to distill from it a number of things that MEPs clearly both want and don’t want to see in the reform proposal. It is also clear that pressure from civil society – related to such issues as Freedom of of Panorama, hyperlinking or ancillary copyright, helped avert worst amendments to the report.
MEPs do not want to see further limitations of user rights.
Attempts have been made to include language that would limit the rights of end users. Fortunately all of these attempts failed. The majority of MEPs is clearly unwilling to further limit the ability of citizens and other users to interact with copyright protected material.
The issue that got the most attention was a proposed limitation of the ‘Freedom of Panorama’ to just non-commercial uses. After massive protests from citizens, photographers and civil society groups this limitation was removed in the plenary vote. Also an attempt to undermine the right to link, driven by EPP MEPs was de-fused in the Legal Affairs committee.
Finally, repeated attempts by the German EPP MEP Angelika Niebler to introduce language that would call on the Commission to introduce an EU wide ancillary copyright for press publishers were voted down first by the Legal Affairs committee and again yesterday by the plenum of the European Parliament. Clearly MEPs do not want to hand out special privileges to press publishers that have failed to do any good in the two member states where they have been introduced so far (Germany and Spain).
What MEPs want
MEPs have been much more cautious when it comes to identifying areas where they want to see change. Chief among them is the desire to end geoblocking practices and to ensure that citizens have access to online services regardless of where they are in the EU. This issue overlaps with one of the stated priorities of the Commission, so we can expect it to be be addressed by the upcoming Legislative proposal. The same is true for the call of the EP to introduce a new exception to copyright that will allow Text and Data Mining (TDM) for research purposes. Parliament has sided with researchers and librarians, who have been arguing that the ability of European researchers to conduct TDM should not be made conditional on obtaining a license first.
MEPs have also made it clear that they want to see copyright rules that allow cultural heritage institutions to share collections online which is an issue that the Commission has been silent on so far. Having a clear political majority for an expansion of exceptions benefiting Libraries, Archives and Museums will hopefully convince the Commission to include this issue the upcoming proposal.
Finally MEPs have clearly expressed that they want EU copyright rules to better protect the Public Domain, by asking the Commission to “ensure that once a work is in the public domain, any digitisation of the work which does not constitute a new, transformative work, stays in the public domain”. This is of course a position that we have been advocating for a while and it is good to see MEPs realizing the importance of protecting the Public Domain.
What MEPs should have done
While there are a number of very welcome elements in the report, it disappoints as a whole. As part of the compromise, statements supporting harmonisation of user rights across the EU have been removed and not even core user rights are seen as mandatory. This is unfortunate, as it will be impossible to build a Digital Single Market (and Public Space) if rules for use of copyrighted works are different in each member state.
It is clear that MEPs have caved to pressure from national governments and national interest groups to keep in place the current system of voluntary exceptions. Lets hope that the Commission in its attempt to build a Digital Single Market will be more ambitious.
The other area where MEPs have failed is to recognize the fact that existing exceptions and limitations are often outdated and need to be updated to reflect the realities of the digital environment. In no area is this more clear than in the area of quotation rights. MEP Reda’s draft report contained a call to expand the quotation right to include quotations of audiovisual works, which has fallen victim to the compromise between the political parties. It does not reflect well on the European Parliament that it fails to take into account a reality where citizens increasingly express themselves and communicate with each other not only via written texts but in audio and video.
What will the Commission do?
The ball is now squarely in the court of the European Commission. Felix Reda’s report is showing them the contours of what the Parliament is willing to support, but also leaves plenty of space for additional progressive proposals. The Commission needs to be more ambitious if it wants to establish a Digital Single Market. A modern copyright law, fit to regulate social and technological realities of today, needs to be based on a clear vision. The idea of the Digital Single Market, with its underlying concept of a freedom of flows within Europe, provides such vision – it remains to be seen whether it will be properly applied to the field of copyright. If the Commission wants to ensure that the new rules are not outdated as soon as they come into effect, the proposal needs to be based on a strong belief in openness and flexibility of the European copyright system.