Caïn venant de tuer son frère Abel, by Henry Vidal

Member States adopt negotiation position, side with rightsholders in attack on user rights

Last Friday the Committee of Permanent representatives of the Council (COREPER) agreed on a negotiating mandate for the proposed Copyright in the Digital Single Market directive. The agreed upon text does not substantially differ from the latest compromise proposals that we have discussed here before. Unfortunately that means that the Member States have agreed on text that fails to address the biggest shortcomings of the Commission’s proposal and in a number of cases actually makes it worse.

The result is a version of the Commission’s proposal that is even more out of balance than the original. The rights-holder lobby has managed to capture the Member States to advance their agenda to the detriment of the interests of internet users in the EU and in complete disregard of the original intention to further harmonise the fragmented EU copyright rules:

  • Over the past one and a half years the Member States, driven by a mediterranean maximalist coalition (France, Italy, Spain and Portugal) have doubled down on the Commission’s highly problematic proposal to impose upload filters for open internet platforms. As we have explained here, the version of Article 13 adopted by the Member States would create a new parallel liability regime that puts the creative expression of platform users at the mercy of a censorship machine run by platform operators in collusion with rightsholders.
  • Driven by the same mediterranean maximalist coalition the Member States have insisted on a narrow, innovation-hostile exception for Text and Data Mining. This approach flies in the face of the EU wide ambition to become an important player in the area of machine learning and artificial intelligence. At the insistence of more forward-looking Member States the Council text also includes an optional exception that allows TDM for a wider set of purposes and beneficiaries, but this comes at the cost of further splintering user rights in the EU.
  • Under intense pressure from Germany the Member States have maintained the introduction of a new ancillary copyright for press publishers against a near-universal academic consensus that such a right will endanger the freedom of information without benefitting press publishers. In a small improvement of the Commission’s proposal the new right would now last for a maximum of 2 years and would not apply retroactively.

There are a few areas where the Member States are proposing improvements to the Commission’s proposal (such as a more streamlined process that would allow cultural heritage institutions to make out-of-commerce works available online, and a new, albeit optional, paragraph providing a legal basis for extended collective licensing) but in general the Member States have missed the opportunity to fix the Commission’s flawed original proposal.

In adopting this text the Member States have made it clear that they do not care for user rights and that they see copyright law as an instrument to protect legacy business models in the publishing and entertainment industries at the expense of education, research and public access to cultural heritage. If adopted, the Council text would drive Europe further away from a true Digital Single Market in which users across Europe have the same rights, and it fails to provide a legal framework that embraces technological innovation.

It is now up to the European Parliament to save users’ rights

All of this raises the stakes for the European Parliament. MEPs are under intense pressure to finalise their position at the end of June. With the Member States ignoring the interests of users and more or less completely siding with the interests of rightsholders, the Parliament needs to put forward a version that can counterbalance the one sided approach championed by both the Commission and the Member States. If they no not want to lose credibility MEPs need to advance proposals to safeguard the rights of European citizens, harmonise the splintered EU copyright rules, and reject demands for additional rights that will hurt European internet users.

A Digital Single Market that benefits the citizens of Europe is incompatible with privatized censorship filters or an ancillary copyright that limits the ability to share information. What is needed instead are harmonised exceptions that allow citizen across Europe to leverage digital tools for education, provide them with better access to our shared cultural heritage and allow them freely research and innovate.

Unfortunately the discussions in the JURI committee currently point in the opposite direction. Therefore it is high time to remind MEPs that they have been elected to represent the interests of citizens and should not join the Member States in promoting the special interests of the entertainment and publishing industries. You can do so right now ee via Mozilla’s ChangeCopyright tool.

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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