Discussions around the European Union’s draft Directive on copyright in the Digital Single Market are as tense as ever. Strong divisions have emerged between and among Member States and Members of the European Parliament around controversial proposals for a new press publishers’ right (Article 11) and an (effective) obligation on internet platforms to filter content (Article 13).
These disagreements stand in contrast to the consensus that has emerged around other provisions in the Directive, which will help libraries and cultural heritage institutions in their work to promote innovation, support education and enable preservation and access to heritage.
Such measures, in line with the EU’s own international obligations, cause no unreasonable prejudice to rightholders, and indeed will support creativity and discovery.
The fear must be that a failure to find agreement on Articles 11 and 13 will lead to calls for the rejection of the Directive as a whole. This would be a huge loss for innovation, education and heritage in Europe, and would be hard to explain to Europe’s voters, given the public support for such measures received from all sides of the debate so far.
This blog offers more detail on the situation so far, and sets out the case for avoiding this worst-case scenario.
The Good – Achievements So Far
The draft Directive already contains a lot of good. Starting from a reasonably positive base in September 2016, discussions among MEPs and Member States have led to improvements in provisions around text and data mining, teaching, preservation, and out-of-commerce-works – Articles 3-9.
If these elements of the Directive pass, EU citizens will:
- Be able to engage much more easily in text and data mining. This will provide a significant boost to research into Artificial Intelligence in particular, at a time when Europe risks being left behind other countries who have been far more ready to update their legislation.
- Have more opportunities to learn using digital tools, including in libraries. This will further democratise education, and help ensure that everyone can continue to learn throughout life.
- Continue to enjoy access to Europe’s cultural heritage into the future, thanks to changes that will give libraries and cultural heritage institutions the clear right to take digital copies of books and other materials for preservation purposes.
- Gain new access to works which are in-copyright but out-of-commerce, and so otherwise can only be found within the walls of libraries.
This is a good result, in and of itself. It will offer important clarity to libraries and cultural heritage institutions and allow them to fulfil their missions in the digital age. It will break down one of the most significant barriers to realising the potential of text and data mining, a Commission priority since 2012.
Moreover, given the EU’s own international obligations under the Berne Convention, it will not cause any unreasonable prejudice to authors. Instead, today’s authors will benefit from wider discovery of their work, including the rediscovery of works which are no longer in print. The authors of tomorrow will find it easier to read, study and innovate.
This is not to mention other elements of the text on the table that will provide additional rights to authors, including the possibility to reclaim rights and to benefit from greater transparency about revenues made on the basis of their work.
These provisions have enjoyed a large degree of consensus, with agreement relatively early on in discussions between Parliament and Council. Stakeholders from all sides of the discussion have been ready to signal their support for these steps, or at least their readiness to accept them.
The Bad – Sticking Points
However, it has long been clear that not all of the Directive is consensual. The two most contentious elements – Articles 11 and 13 – look to create new rights or rules for situations which are arguably specific to individual markets, and indeed individual providers – the situation of newspapers faced with GoogleNews, and of record companies faced with YouTube.
As has been argued repeatedly, the proposals on the table – a new right over very short fragments of text from newspapers, and an obligation on all online platforms to filter content uploaded by users – are likely to make the problem worse.
Not only will they strengthen the hand of the existing dominant players (who are best placed to negotiate with content producers, introduce filters or make payments), but they risk causing major collateral damage, for example to educational and scientific repositories run by libraries.
It is therefore unsurprising that there is so much disagreement about these articles.
Most recently, and just days after the agreement of a new Treaty between the countries, France and Germany disagreed about whether smaller internet platforms should be excused from the obligation to filter all user content for potential copyright infringement.
Even though this particular dispute has been agreed, there are many more still open, underlining how flawed the approach to these articles currently is.
In short, while there is support for effective ways of sustaining high quality journalism and curtailing illicit uses, the proposals on the table are not the answer.
The Ugly – The Nuclear Option
There are crucial meetings due in the coming days which aim to find a way forwards. Steps have been made to create some minor flexibilities in Articles 11 and 13, for example to reduce the burden on small platforms, as well as limited protections for the educational and scientific repositories that support open access and open educational resources.
However, there are already complaints from some who had previously supported Articles 11 and 13, who are unwilling to accept anything less than the highly flawed original proposals.
Most worryingly, these calls are accompanied by demands to reject the entire Directive.
This would be the worst of all worlds. All of the progress already made to date on Articles 3-9 would be at risk, despite already having been subject to consensus. The years of work that have gone into these would potentially be lost, and with it an opportunity to support clear public interest goals in Europe.
As an election approaches, it would be difficult to explain to voters why a flagship piece of legislation has been sunk, merely because there was disagreement on one part.
It is therefore time to reflect on the value of delaying those parts of the Directive which are clearly not yet mature, and proceeding with those that are. This would allow the European Union to chalk up a useful ‘win’.
Instead of rushed discussions now, a full and holistic discussion on how to achieve these goals, reviewing all relevant policy tools, is needed, and could be a useful job for the next Parliament.