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

We were hoping that the Committee on Civil Liberties, Justice and Home Affairs (LIBE) rapporteur Michal Boni would make use of the Committee mandate to suggest deletion of entire article 13 from the proposed Directive on Copyright in Digital Single Market. That didn’t happen. The justification of the report reflects a hope that the idea to regulate agreements between platforms and rightholders can be sustained while respecting fundamental rights of users. But do the LIBE amendments meet that goal?

Looking beyond technology

The very good news is that Rapporteur Boni proposes to remove content recognition and all references to the use of technology as a default option from the directive. MEP Boni also explicitly says in his report that the implementation of the agreements should not impose any general monitoring obligations.

Here the report builds nicely on theapproach paved by the JURI’s rapporteur MEP Comodini in her report. The removal of references to technology opens the path to looking for a variety of solutions in negotiating the division of revenues between service providers and rightholders. No doubt that technologies will be employed to verify if content is uploaded legally. But the EU copyright legislation should not require a direct connection between the business discussion on who the revenue should go to and the surveillance of users uploading stuff on a platform.

MEP Boni also proposes to remove preventing the availability of works identified by rightholders from article 13. It further brings the projected reality to current practices, where rightholders are notified if their content is uploaded by users and then decide whether to take it down or let it be. This is really important, as this provision combined with reliance on content recognition creates the danger of automated blocking of anything that has been recognised by rightholders, even if published under a copyright exception.

Making sure E-Commerce Directive stays intact

In a way, LIBE rapporteur is lucky to have been able to see all the opinions grappling with the issue of what sort of service providers would fall under the directive. Building on these perspectives, he offers quite an elegant way to introduce some common sense in the possible future practice of applying article 13.

Those who should conclude agreements with rightholders, according to LIBE rapporteur, are Information Society Service Providers that offer users content storage services, that provide the public with access to the content, and that are not eligible for the liability exemptions under the E-Commerce Directive due to that activity. Recital 38 further explains that they need to actively and directly make works available as well as promote these works to the public to be considered liable under article 13. All the conditions accumulated point at a very specific set of platforms that facilitate and promote user-to-user interaction based on copyrighted content (They basically point at video sharing platforms such as YouTube).

If article 13 is implemented in the shape proposed by rapporteur Michal Boni, those few platforms should conclude licensing agreements with rightholders and ensure protection of works through appropriate and proportionate measures. That sounds more like a good recommendation on fair business practice than a provision that needs to be enshrined in the directive. But in fact this is a way to set a limit on abusing available technologies to the detriment of fundamental rights. In that sense this intervention is well justified by the mandate of the LIBE Committee.

On the other hand, the fact that these conditions would create additional barriers for operators of open platforms cannot be ignored. There is a visible trend to transform the internet from a space of peer-to-peer exchange into a platform that is governed and shaped to accommodate powerful industries. MEP Boni’s concept would perhaps slow these processes but definitely not counterbalance this trend.

Users have a say in defining best practices

In a way the Directive Proposal on Copyright in DSM is evidence to the fact that politicians are willing to give power to private actors. If implemented, the Directive would let private entities define what works and what doesn’t work in putting article 13 into practice. LIBE draft opinion stirs that power balance a bit with adding users’ representatives to the mix. Users’ perspective should always be sought whenever there is a possibility that they will face limitations in exercising their rights.

Rapporteur Boni does not propose to completely change the position of users in the negotiations over revenue flow but he offers some reinforcement. In ensuring user access to court or a competent authority to clarify use under a copyright exception, and in underlining that these are the rightsholders who have responsibility for claims over the use of their works, the opinion provides a basis that user rights matter.

We should pull the plug on this one, but we probably won’t

We still believe that the whole idea for article 13 is wrong from the perspective of users and the sensible way out of it is to delete the article and the corresponding recitals. We also see the internal split in all the Committees and political groups regarding article 13 that makes the win of the nuclear option “delete” politically impossible.

The rapporteur has decided to take a politically constructive path and to offer a more compromise-ready concept. As rational as it is, it is somehow disappointing that the very Committee set to protect fundamental rights is not poised to take a firmer stand.

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