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Article 11: still too broken to fix

This week the Bulgarian presidency released their consolidated presidency compromise proposal for a directive on copyright in the digital single market. Instead of taking a proactive approach to fix some of the worst elements of the Commission’s beleaguered proposal, their plan backtracks on many of the most controversial aspects, which only seems to throw the public further under the proverbial bus. As we discussed recently, Article 13 is beyond repair and should be deleted.

The same goes with Article 11— the provision that would create new rights in press publications and allow press publishers to control digital uses of even the smallest snippets of their content. We’ve advocated that the press publishers right should be removed from the proposed directive. Not only is the mechanism ill-suited to address the challenges in supporting quality journalism, it would have the effect of decreasing competition and innovation in the delivery of news, limit access to information, and create widespread negative repercussions for related stakeholders.

Instead, the Bulgarian “compromise” doubles down on the Commission’s original idea and ignoring most of the positive protections offered by some members of Parliament and the earlier Estonian draft.

First, the Bulgarian position removes the following text associated with Article 11: “This protection does not extend to acts of hyperlinking when they do not constitute communication to the public.” The public interest community has warned that Article 11 could be used to censor links, but policymakers in favor of Article 11 brushed off these concerns. Now with this language erased, it’s full speed ahead for rights holders to attempt to control how links are used throughout the EU.

Second, the compromise modifies the text to include that “information society service providers” could be subject to the press publishers right. This could be interpreted as an expansion of those types of platforms that are subject to the right, although it’s good to see that the Bulgarian proposal leaves intact the text that academic and scientific publishers specifically are excluded from the scope of the right (unlike the flawed ITRE opinion).

Third, the proposal does not include the option presented earlier by MEP Comodini (and also contemplated in the Estonian presidency compromise) that would rely on a presumption that publishers are the rights holders, thus making it easier for these entities “to conclude licences and to seek application of the measures, procedures and remedies.”

Fourth, the Bulgarian compromise alters the term of the press publishers right from 20 years to 10 years. Considering the incredibly short useful life of news stories and much other content that would be subject to the press publishers right, shortening the term to 10 years meaningless. It’s sort of like making a compromise that it would be disgusting to drink milk that expired two months ago, but drinking milk that expired only one month ago is just right!

Finally, one good aspect of the proposal is the inching toward a more reasonable approach to not grant copyright-like rights where none should exist. The text states, “As the protection granted to publishers of press publications under this Directive should not go beyond the protection granted in Union law to the authors of the works contained therein, other extracts of press publications which do not reach a minimum level of originality should not fall within the scope of the rights provided for in this Directive.”

The Bulgarian consolidated presidency compromise proposal is disappointing—to say the least. Despite overwhelming evidence that it’s a universally bad idea that won’t accomplish what supporters say it will—and instead will create massive problems for access to information and journalism—Article 11 continues to maintain (and seemingly gain) traction. What a shame. Like Article 13, it should be deleted.

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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