EU Copyright Reform: Not Finished Yet
After over a year of discussion since the Digital Single Market1 strategy was first announced, the European Commission has finally gotten down to talking about specific proposals for copyright reform. Following European Commission President Jean-Claude Juncker’s “State of the Union” address on Wednesday, the EC published a set of proposals that aim to clarify copyright rules and regulations within the EU by December this year.2 The EC’s proposed Directive will now pass to the European Parliament and Council, all three of whom must agree on the final draft before it passes. The last radical overhaul of copyright law at European level was the Copyright Directive in 2001, long before many of today’s online digital content providers existed, such as YouTube, Spotify or Soundcloud.3
One objective of these proposals is to more adequately address the rights of creators, other right holders, and press publishers, who have too often been unable to negotiate the conditions and payment for the online use of their works and performances under the existing copyright framework.
In Juncker’s address on Wednesday, he said: “I want journalists, publishers and authors to be paid fairly for their work, whether it is made in studios or living rooms, whether it is disseminated offline or online, whether it is published via a copying machine or hyperlinked on the web.” The overarching feeling when reading the European Commission’s proposed Directive this week is that, as Juncker says, the EU has copyright creators and copyright owners’ best interests at heart. But it may not achieve its intended purpose when put into practise.
The Directive would obligate content hosting sites that provide user-generated content to take “appropriate and proportionate measures” to ensure copyright laws are being adhered to and to prevent copyrighted material from unlawfully being provided as part of their service.4 This introduction of so-called “ancillary copyright” places a heavy labor and financial burden upon content hosting services and search engines. Depending on the extent to which this is implemented, this proposal could potentially make it unfeasible for even the largest online content providers to do business in Europe; due to a similar issue in Spain, Google made the decision to stop providing its news aggregator service (Google News) in the country, doing huge economic damage to the publishing industry there in the process.5 In Germany, publishers utilized their ability to circumvent the consequences of similar laws through granting Google a free license to link to their sites.6
If publishers are afforded leeway under the new Directive to grant licenses then publishers may feel compelled to grant free licenses to a news aggregator with as much traffic-pulling power as Google, so the intended benefit of the proposals may well be lost. Furthermore, less influential search facilities will likely not be afforded a free license from publishers and will struggle against more powerful competitors.
The idea of ancilliary copyright is also in opposition to the e-Commerce Directive of 2000, which protects operators of user-generated content platforms from liability, provided they remove the content once they are made aware of its presence on their site.7 Compelling the hosting site to monitor the content would be a complete reversal in strategy and in direct opposition to the 2000 Directive, but it is unclear at this stage whether the European Parliament and Council will endorse such a change.
The new proposals require intermediaries that store and provide access to large amounts of works uploaded by their users to ensure no copyright violations occur, including through “use of effective content recognition technologies.”8
Again, forcing hosting sites to develop effective technology to recognise copyrighted and unauthorized content, and to actively monitor the site for that content, is something that only relatively more profitable sites will be able to accommodate into their budgets.
Andrus Ansip, Vice-President for the Digital Single Market, said in Wednesday’s EC press release: “Europe’s creative content should not be locked-up, but it should also be highly protected, in particular to improve the remuneration possibilities for our creators.” 9
But this new set of proposals wouldn’t effectively allow content creators to prosper in this new environment. Creators would remain shackled by powerful technology companies, who control their fate. The proposals could also create a framework where emerging media hosting and search facilities find it impossible to develop, but the established elite will be even more dominant than they are already. It is likely that much of these proposals won’t be part of the finished Decision that is expected to be agreed upon later this year.
A Digital Single Market Strategy for Europe – COM (2015),[footnote]https://ec.europa.eu/digital-single-market/en/news/digital-single-market-strategy-europe-com2015-192-final [https://perma.cc/W4QC-NQET].↩
Proposal for a directive of the European Parliament and of the council on copyright in the Digital Single Market.↩
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) Article 14, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML [https://perma.cc/Y7W9-EBJC].↩
Proposal for a directive of the European Parliament and of the council on copyright in the Digital Single Market, Chapter 2, Article 13, available at http://ec.europa.eu/transparency/regdoc/rep/1/2016/EN/1-2016-593-EN-F1-1.PDF [https://perma.cc/CA96-ZRJ8].↩