Days before the final vote of the European Parliament on the copyright directive, the discussion about the directive seems entirely focussed on Article 13. A wide coalition of civil society groups, online creators, academics and citizens is calling for the removal of Article 13 from the directive. On the other side 270 organisations representing rightsholders are calling on MEPs to say “yes to copyright” and pass the directive in its current form (including Article 13).
Behind the facade of these well known (and deeply entrenched) positions, something interesting is going on. If we start un-peeling the arguments brought forward by both sides, it seems that they are closer than it appears. When it comes to Article 13 there seem to be two points that almost everyone seems to agree on:
(1) Nobody really wants to see the widespread use of upload filters and (2) Everybody agrees that there is a need to ensure that creators are fairly rewarded on the basis of licenses obtained by the online platforms.
This agreement is emerging as a result of several recent developments. On the side of the opponents of Article 13 the intense discussion of the previous weeks has resurfaced the fact that underneath the calls for a deletion of Article 13 there is widespread acknowledgement that there is a real need for platforms to pay those creators who want to be paid for uses of their works by the platforms. On the side of the proponents of Article 13 there seems to be an increasing realisation that an Article 13 that does require widespread use of upload filters may lack sufficient support within the EP (and certainly outside of it).
Upload Filters have become toxic
This second development represents a marked shift in the positioning of the supporters of Article 13. The most prominent example of this is a position paper of the German CDU (the same political party that rapporteur Axel Voss belongs to) in which the promise (to an enraged German electorate) that Germany would implement Article 13 in such a way that there will be no need for upload filters (by requiring platforms to obtain blanket licenses). While the substance of this claim is way out of line with the actual text of Article 13 and the requirements of the rest of the EU framework, it does illustrate that even for the CDU, which was instrumental in pushing through the current text, upload filters have become too toxic to be associated with.
Arguing along the same lines, other proponents of Article 13 are claiming that it would not require platforms to implement filters because Article 9a of the directive would enable collective management organisations to issue extended collective licenses covering all works that users upload to platforms. While also not in line with reality (Member states are not required to implement Article 9a and even if they do there are no representative collective management organisations for all types of works that platforms would need to license), this is a similar attempt to reason away the upload filters.
Licensing does not require filters
On the other side MEPs have proposed versions of Article 13 that would not require upload filters while still requiring platforms to enter into licensing agreements with “requesting rightsholders” (these proposals were rejected by the European Parliament in September). Others have proposed approaches that would require platforms to license that range from mandatory collective management of the rights required by the platforms (i.e. a legal provision that would require all rightsholders to license through the CMOs so that platforms can clear the rights through a single license) to extended collective management (similar to mandatory management but with an option to opt out which will result in platforms clearing the rights from smaller rightsholders through CMOs while making direct deals with bigger rightsholders).
None of these approaches would be straightforward to implement as it would need to account for the divergent business models of different creative sectors. Music is generally licensed to anyone who is willing to pay license feeds, while most audiovisual works are selectively licensed and as a result it needs to be possible for AV rightsholders to exclude uses that are not covered by an exception from the scope of the licenses. Still, such approaches would meet the two conditions identified above. They would ensure fair rewards on the basis of licenses, and they would not require upload filters (for excluded works the existing notice and takedown regime established by the E-Commerce Directive would continue to apply).
More importantly such approaches would specifically target those uses of copyrighted works by platforms that are considered problematic by rightsholders and not upend the liability regime for all internet platforms, many of which have nothing to do with the distribution of music and audio-visual works.
Time to reset the discussion
That such an approach which addresses the needs of both the music rightsholders and the AV rightsholders is possible without overthrowing the current liability regime is illustrated by the current situation: in recent statements GEMA (the German collecting society for musical works) conceded that “when it comes to music, youtube is already effectively licensed”. At the same time, anyone with even a cursory familiarity with the offerings on YouTube and Facebook will know that these are not exactly places where one goes to obtain unauthorised copies of major AV productions.
Given this, a legal intervention that requires platforms to obtain licenses for materials uploaded by their users should be sufficient. There is simply no need for upload filters to achieve this policy objective of making the platforms pay more to the creators of the works that are an essential element of their business model. Such an intervention needs to be carefully crafted so it does not negatively affect a new generation of digital creators that has build business models that do not rely on collective management organisations as intermediaries. What Europe needs is a reform of its copyright rules that looks towards the future instead of a solution that works for powerful stakeholders that currently “sit at the negotiation table”.
While it is late in the current process it is not too late to act on this insight. For Tuesday’s vote amendments have been tabled to remove Article 13 (and the associated recitals). Adopting these would provide room to reset the discussion on how to best ensure that platforms pay their fair share to rightsholders. A solution in line with what we have outlined above addresses the policy objectives of a broad range of stakeholders from both sides of the debate and as a result it should be easier to adopt in a follow up legislative intervention that stays true to the original objective of creating a Single Digital Market (instead of a patchwork of national implementation of a flawed Article 13).