Persiflage op de censuur

Worst version of the EU copyright reform proposal yet, thinly veiled as a “compromise”

Earlier today MEP Felix Reda has published two documents containing “EPP alternative compromise amendments” to the IMCO draft opinion on Copyright in the Digital Single Market directive. These documents propose alternative “compromise” AMs on the proposed publishers rights (article 11) and on the so called “value gap” (article 13). Both documents have been drawn up by MEP Pascal Arimont, the EPPs shadow rapporteur in IMCO and contain the most brazen attempt so far to push through a rightsholder agenda that goes even further than the commission’s flawed proposal. While it is unclear how much support these amendments have it is very clear that they express extremist positions rather than “compromises”.

Press publishers über alles

The first set of “compromise” amendments deals with article 11 and the associated recitals and represents an unprecedented land grab on behalf of press publishers. As part of this “compromise” proposal MEP Arimont wants to extend the term of protection for the new publishers right from 20 years (as proposed by the Commission) to 50 years. In addition he proposes to extend the right to include academic publications (which were explicitly excluded from the commission’s proposal) and also applies it to analogue uses.

This massive extension of the publisher’s rights will still be very unlikely to generate new income streams for publishers, not to mention delivering on  the promise to ensure journalists get an “appropriate share of the remuneration”. Instead, it will cause substantial collateral damage. Libraries and other cultural heritage institutions will suddenly see themselves confronted with a new class of rightsholders who can make claims for publications that have been published many decades ago. As a result libraries will likely need to take archival collections off line and spend additional resources on clearing rights.

The EPP proposals will also introduce massive uncertainties for anyone linking to press publications online. According to the proposed language any hyperlink that contains “the key information which was to be conveyed” would be infringing. The proposed standard is as ridiculous as it is impractical. Unfortunately this does not seem to register with the EPP MEPs responsible for these “compromises” who are clearly willing to throw everyone else under the bus in their attempts to grant press publishers new exclusive rights.

Death to open platforms

The second set of alternative compromise amendments deals with article 13 which has been proposed by the commission to deal with the so called “value gap”. We have previously highlighted the many concerns over user rights, censorship and privatized enforcement and it is shocking to see that MEP’s “compromise” proposes to make all of these issues far worse.

MEP Arimont opens a full frontal attack on all open online platforms that allow users to upload copyright protected content. According to proposed language any platform that allows user uploads and does anything more than simply displaying such content (such as “optimisation for the purpose of the presentation by the service” or “promotion of content by the service”) will be stripped of the liability exemption provided for in Article 14 of e-commerce directive. This means that all open platforms will be liable for any infringements by their users forcing them to obtain wide ranging licenses and implement filtering technologies.

With this proposal Arimont is doing the bidding of GESAC and other representatives of rightsholders. In an open letter published yesterday, GESAC explicitly asked policy makers to exclude all open platforms from the liability regime of the e-commerce directive:

“We […] call on you to clarify that UUC [user uploaded content] platforms like YouTube are involved in reproducing and making our works available under copyright laws  [and to] ensure that the safe harbour non-liability regime does not apply to as it is meant for technical intermediaries only.”

Sucking the life out of the online information ecosystem

It is important to realize that what MEP Arimont is proposing here will have effects far beyond the platforms that rightsholders want to target. Copyrighted content is uploaded to lots of different platforms ranging from open access repositories for academic publications, code repositories like github and many other online discussion platforms. Stripping all of these of the protections offered by the e-commerce directive and requiring them to employ upload filters will be a severe blow for lots of collaboration platforms that have no impact whatsoever on value creation in the music industry.

The common thread in both sets of “compromise” amendments is a complete disregard to the collateral damage caused by the proposed measures. It is understandable that rightsholders advocate for copyright rules that privilege their interests above the interests of other businesses in their value chains. Unfortunately the rights holders do this with an arrogant sense of entitlement that makes them completely blind to the damage they are causing to the wider information ecosystem. As such the proposed “compromises” are bad policy and must be rejected.

We all need to act, now

As MEP Reda points out in her analysis there are just 9 days left to ensure that these “compromises” will not be adopted by the European Parliament’s committee on the Internal market and Consumer Protection (IMCO). The best way to contribute to this objective is by contacting MEPs from your country who sits on the IMCO Committee and tell them you expect them to support MEP Stihler’s compromise amendments on the copyright file.

A phone call takes no more than a few minutes and can prove very effective. Our friends at Bits of Freedom have created a useful tool that allows you to call MEPs for free! The vote in IMCO will take on the 8th of june, so the time to act is now!

A satire on the art business in which art experts and dealers who assess paintings are depicted as donkeys. After the drawing by Trémolières in the Hessisches Landes Museum in Darmstadt (cropped).
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