Caïn venant de tuer son frère Abel, by Henry Vidal

After 30 months, EU legislators agree to sell out users and creators to big platforms and big content.

After yesterday’s agreement between the European Parliament, the Council and the European Commission on a compromise text, the EU copyright reform process has entered into its final phase. The good news is that after yesterday’s compromise the text cannot get any worse: it will either be adopted or it will be rejected. The bad news is that the text that was agreed on yesterday is **the worst version that we have seen yet**. After three days of negotiations, the negotiators have agreed on a text that would benefit big corporate rightsholders, Google and other dominant platforms at the expense of users, creators and the rest of the European internet economy.

To understand what has happened during the negotiations, it is illustrative to look at the differences between the final compromise and the text that had been agreed among the EU member states last week (which was the result of horse trading between the French and German governments).

A win for dominant platforms…

Yesterday’s compromise text is largely in line with the French-German deal. This includes a terrible version of Article 13 that will severely limit users ability to express themselves online. It will also further consolidate the power of dominant platforms, as smaller platforms will struggle with implementing expensive filtering technology and supporting the increased costs for dealing with increased liability.

It also introduces a EU-wide neighbouring right for press publishers that will have very similar effects. It benefits dominant platforms who can afford compliance while creating additional costs and risks for smaller players. As a result, users will likely end up with less access to information and the diversity of information available online will likely suffer. Under these conditions it remains to be seen if rightsholders will indeed manage to extract more value from the large intermediaries.    

…at the expense of users and creators

As if this would not be bad enough, the negotiators have introduced last minute changes to the text that further weaken provisions that were intended to protect the rights of users and individual creators. The French/German deal did not (at least not clearly) include a UGC exception for users of every online platform, but it used language that at least applied to  user-generated content uploaded to the platforms covered by Article 13. The final compromise has adopted questionable language that may or may not  provide a meaningful protection for users of platforms covered by Article 13, depending on whether Member States are obliged to fully implement the existing quotation and parody exceptions provided in the InfoSoc Directive, and make them applicable to user-generated content, which is not evident from the text.

Likewise the negotiators have gutted a key provision that was intended to ensure that individual authors and performers receive fair remuneration for online uses of their works. Instead of ensuring that they receive compensation for the exploitation of their works, proportionate to the revenues generated, the final language contains a loophole that allows the very practice of lump sum payments that this provision was intended to end.

Taken together these changes result in a directive that will mainly preserve the status quo and that has shed all noble intentions of strengthening the rights of users and creators and bringing more harmonisation into the fragmented EU copyright system. To the contrary, the directive introduces more complexity, privatizes enforcement and increases the legal risks for online operators in the EU. Instead of creating a EU copyright framework that works with the internet, the EU legislator has created a legislative monstrosity that works against the internet and will reinforce some of its most problematic aspects, such as the centralisation of services in the hands of a handful of US-owned platforms.

A final chance to stop the directive (so we can start anew)

We will provide more detailed analysis of the final compromise in the coming days once the official text is available. Before becoming EU law, the text still needs to pass a number of procedural steps. The first two of these, approval by the Member States and by the JURI committee of the European Parliament, are almost certain to happen.

It is the final vote of the whole European Parliament, which will take place in late March or early April, that creates an opportunity to stop this directive from becoming law. In order to achieve this MEPs need to be told loud and clear that yesterday’s deal is bad for users, bad for creators bad for the EU internet economy (you can do so via Yesterday’s deal is so bad that the only sensible way forward is to vote it down and rethink from scratch what a modern EU copyright framework should look like.

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A “compromise” that fails to deliver – our overall assessment of the directive remains negative
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Final countdown on Article 13: here is how bad it really is
February 13, 2019