The arguments for Article 13 (now renumbered to Article 17 in the consolidated text) of the EU’s draft Directive on Copyright in the Digital Single Market are not strong.
Despite protestations that it does not imply that platforms will have to filter content uploaded by users, it is hard to imagine a way of preventing illegitimate content (and a lot of legitimate content with it) getting online without it.
It overturns a key principle that has allowed for free speech on the internet, all while strengthening the hands of the biggest companies. It will have an impact globally, given that any platform available to European internet users is likely to be covered.
Moreover, the solution provided by blanket licensing isn’t one, as set out in our blog last week.
But what about the rest of the Directive, outside of Article 13 (17)? What would a Directive without this one poorly thought-out, poorly argued provision look like?
It turns out rather well, for all concerned. Indeed, once Article 13 (17) is deleted, it would be a bad result for everyone to lose the Directive as a whole.
First of all, authors stand to gain strongly from the provisions included in Articles -14 to 17 (now to be Articles 18-21).
These cover both the right to equitable remuneration from market uses of their works, as well as new possibilities to get a fair deal if their works turn out to be bestsellers.
Elsewhere, their interests are protected in the Articles dealing with out-of-commerce works. Alongside the possibility for rediscovery that these Articles offer, there is strong emphasis on authors’ right to stop their works being made available.
Publishers will gain from Article 12 (now 16), which gives a legal basis for the distribution of revenues from reprographic rights schemes to them. Previously, the legitimacy of such arrangements had been thrown into doubt by the Reprobel judgement.
Collective management organisations (CMOs) also receive a major boost from Article 12 (now 16). The Reprobel judgement had seen a number of them facing major liabilities for money paid out to publishers which should have gone to authors.
They have a major victory, also, with Article 9A (now 12), which underlines the legal status of extended collective licensing schemes. Finally, Articles 7-9 (now 8-11), on out-of-commerce works, provide a strong incentive for the creation of new CMOs.
European firms working with text-and-data mining benefit from Article 3A (4 in the consolidated text), which gives them new possibilities to mine works to which they have legitimate access. Unlike multinationals, which can simply move operations to more favourable jurisdictions, now home-grown companies can take advantage of the possibilities.
And of course Europe’s libraries and their users benefit from the various new provisions on preservation, access to out-of-commerce works, and text and data mining as above.
So when, as we hope, Article 13 falls, there is no good reason not to vote through the rest of the Directive. Indeed, not supporting the rest of the Directive, following the removal of Article 13, would be a loss for all sides of the debate.
Clearly, the Directive still wouldn’t be perfect – ideally Article 11 should also be removed, given that evidence has shown that it seems to be a bad deal for the press publishers who are demanding it. But it would be a lot less bad.
Meanwhile, the approach of Article 13 – of using copyright law to address a competition issue – coupled with different approaches taken to platform responsibility in other areas (terrorist content, deliberate misinformation) is only likely to lead to complexity. The result will be only to strengthen the hands of those best able to deal with it.
For the sake of human rights – and the principles of sensible regulation – this is a question best dealt with in the next parliament.