Tag Archives: copyright directive

Remedies, Removals and Rights: (Lack of) Conclusions So Far from the EU Stakeholder Dialogue on Upload Filters

The third day of Copyright Week 2020 is focusing on the topic of remedies – the compensation that those found guilty of infringement are expected to pay to ‘make things right’. In the United States, for example, these can be very high, with the intention of having a dissuasive effect, although often final sums are the result of out-of-court settlements.

However in Europe, through the Copyright Directive, the goal appears to be to prevent copyright-infringing content being made available in the first place, and permanently remove it from circulation, at least through internet platforms. This is the logic behind Article 17, which looks to increase pressure on platforms (primarily YouTube) to do more to stop videos which contain copyrighted content getting online.

The Article contains various flaws, not least the fact that despite the original goal being to strengthen the position of rightholders in their negotiations with YouTube, it covers all types of work, and all but the smallest and newest platforms. It also includes a fundamental contradiction between the obligation to make, ‘in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter’ (Article 17(4)(b)) – almost universally assumed to mean the use of filters of uploads, and the prohibition of ‘general monitoring obligations’ (Article 17(8)). Added to this are the demands in Articles 17(7) and 17(9) to protect uses under exceptions and limitations.

In order to try to resolve some of these issues, Article 17(10) of the Directive calls for a stakeholder dialogue in order to provide guidance on these issues. Five meetings in, it remains hard to see what sort of document will emerge. If nothing else, this can hopefully serve to underline the need to resist any similar legislation elsewhere.

The below sets out a number of key points so far, based on IFLA’s engagement in the discussions alongside partner organisations such as Communia:

There’s a difference between detecting content and detecting infringement: the dialogue has heard a number of presentations from companies selling software which aims to detect copyrighted as it is uploaded to internet platforms.

While the strong variation in the claims made (from being able to detect a film in a fraction of a second to needing a somewhat longer, for example), it has been consistently clear that such tools cannot determine whether an exception of limitation to copyright is at work

Therefore, while some involved in the dialogues have sought, effectively but wrongly, to deny the existence of exceptions and limitations, it seems clear that for a determination to be made between whether  use of a work is infringing or not, filters are not enough – human moderation is needed.

There’s no consensus about how much of an answer can collective management provide: one of the options for internet platforms presented in the Directive is to obtain licences for uploaded content. Clearly, when it is working well, collective management has the potential to provide at least a partial answer that would make it easier for platforms to clear at least some rights, when needed.

At the same time, representatives of many rightholders underlined their discomfort with an excessive focus on collective licensing as solution. In many countries, collecting societies do not cover every sector or type of right, and there may be questions about governance and representativeness, especially given the diversity of content uploaded onto platforms. There can be major differences between sectors, and types of right, in attitudes.

Finally, there was strong doubt expressed – including by the Finnish government representative – that extended collective licencing could work across borders.

There is a lack of data about what is really going on: the Directive underlines the need for transparency about the operation of platforms in order to inform the Dialogue.

As a result, there have been calls for figures to be shared on the volumes of works uploaded that contain copyrighted content, what share are then determined to be infringing, what share is then taken down or monetised, and how often take-downs or decisions to monetise are challenged, successfully or otherwise. However, this information is rarely if ever forthcoming, meaning that it can be difficult to understand the scale of the challenge faced.

Size matters: a point that has repeatedly emerged during the discussions is the difference between bigger and smaller players, be they creators, platforms or uploaders. For creators, there is a fair amount of evidence that exposure is essential for newer entrants as a means of building a following. However, established creators understandably do not want to lose revenues.

For platforms, the larger ones are generally able to pay for – or create – their own tools (including armies of content moderators) for trying to determine infringements. For smaller ones, it remains unclear if meaningful technologies are available at an affordable price.

Finally, for uploaders, broadcasters underlined concern about their own content – for which a priori they have cleared all rights – being blocked. This raises questions about whether some uploaders might enjoy privileges, something that could provide controversial amongst others.

There is a risk of abuse: A telling intervention from Facebook in the 4th meeting underlined their concerns about mistaken claims of copyright, and the degree to which they only make filtering tools available for use by rightholders who could trusted to use them fairly. It has also become clear that filtering companies themselves do not verify the legitimacy of copyright claims before providing the tools to enforce them.

Clearly this is a difficult area, as there are different ways of demonstrating ownership of copyright from one sector to another. As some rightholders underlined, this can slow down assessments, and so cause harm. At the same time, without any effort to show ownership, the system is wide open to abuse.

There is a need to remind everyone what’s at stake: finally, but importantly, a key issue remaining to be discussed is how to ensure that whatever system is chosen must protect fundamental rights, including those protected through exceptions and limitations such as those for quotation, criticism, satire, parody, and pastiche.

The risk, in a situation where there is no firm guidance, but rather decisions are left up to national authorities and courts, is that this aspect is forgotten among all the efforts to tailor rules to the specific situation for the sector, type of rights and country involved.

A key task for libraries and others, both in the discussions in Brussels and in national implementation, will be to ensure that this is not the case.

What’s Not Preserved is Lost: Why We Should Care about Article 6 of the Copyright Directive

Today, the chapter of the new Communia guide to the Copyright Directive focusing on preservation is launched. We’re happy to have led in preparing this, working with our partners at Communia.

Preservation may not have seemed like the biggest issue in the Copyright Directive, compared to the other subjects under discussion.

The topic itself can seem to be of minority interest. But it’s important to remember that preservation is not just carried out to make sure that future historians have something to read.

Preservation is a vital first step for any future use of a work, either under an exception if it’s in-copyright, or freely once it gets into the public domain.

Digitisation in particular is a key tool for doing this. It is true that this is not necessarily easy or cheap – there needs to be constant attention to ‘bit rot’ – the loss of access to content because of the obsolescence of formats or supports – and to ensuring that servers are kept safe.

But it does massively strengthen our ability to safeguard, and subsequently use, the documents and works that have shaped our past.


A Potential Unrealised?

The work of organisations like Europeana are showing how valuable preserved materials can be for education. The entire digital humanities discipline is based on coming up with new insights on the basis of digitised materials. The potential of historic documents to inform policy and help us understand the progress of climate change is becoming clearer and clearer.

Yet there is unevenness in current preservation rules across Europe. Who can carry out preservation is not the same from one country to the next, nor are the rules about permitted purposes.

A number of countries force libraries to check for commercially available copies before carrying out preservation, and others effectively rule out digitisation by putting limits on the number of copies taken. All but five countries allow contract terms to take away the possibility to take preservation copies.

This all means that currently, the capacity of heritage institutions across Europe to preserve their past is not the same, leaving some countries and cultures at greater risk than others.

Moreover, the inconsistency between countries stands in the way of cooperation across borders, leading to inefficiencies in the use of expensive equipment, and missed opportunities to store documents in distributed networks.

This is what the Article addresses.


The Article and its Implementation

Article 6 is a relatively short article, and – fortunately – was already in a good state in the Commission’s original proposal, thanks to engagement from the heritage community.

As underlined in the Commission’s Impact Assessment, there was a clear public interest objective at play, and the arguments for leaving this to the market were weak at best. The challenges faced by institutions working across borders justified the need for international action.

The Article therefore makes it clear that cultural heritage institutions (broadly defined) can take copies for preservation purposes (also relatively broadly defined) of works in their permanent collections.

Properly implemented, it promises to remove many of the rules that have obliged libraries to spend time looking for commercial copies which are not necessarily easy to find, to make it clear that they don’t need to wait until a work is falling apart to preserve it, and can take copies to help with cataloguing, getting insurance, or other actions related to preservation.

In short, it should remove many of the needless legal barriers to preservation which have meant that some institutions are better empowered to safeguard heritage than others.


Going Further

Nonetheless, there is more to do. The provisions of the Directive needs to be implemented properly for a start, including the broad definition of heritage institutions and preservation purposes, and provisions on contract override and text and data mining.

A key area for attention will be the way in which those works which can be preserved are defined. The Directive talks about works in the permanent collection, yet at a time when so much of the material made accessible by libraries to users is licenced, and lives on third-party servers, it is important to avoid situations where an ever decreasing share of works can be preserved by libraries.

There are more positive possibilities. The Directive could offer a long overdue possibility for libraries to get the legal certainty necessary for web harvesting – i.e. copying freely accessible content from the internet for preservation purposes.

It could also bring about long-overdue consistency in the possibilities libraries themselves have to copy works for internal purposes.



For all that Article 6 should be obvious and uncontroversial, it does mark a useful step. In the light of the European Year of Cultural Heritage in 2018, the exception is of course the least that the EU could have done to support the preservation of the past.

Crucially, it also sets an example for countries elsewhere in the world. While preservation exceptions are relatively common, there are desperately few which allow for digitisation.

This is a crucial point at a time of climate change, when all it may take is one wildfire, flood or storm to wipe out the historical record of a region or country.

We hope to see the model created by the European Union spread throughout the world.

The EU Copyright Reform: Battles Won, Bullets Dodged, and the Questions that Remain

The text adopted yesterday at the Council, after the Parliament’s vote on 26 March, comes after years of discussion.

The Commission’s proposal released in 2016 has been reviewed and voted upon in five parliamentary committees, at the plenary of the European Parliament, at several levels within the Council, and through trilogue discussions among the Council, the Parliament and the Commission.

IFLA and its partners have engaged in every step of the process to ensure the best results possible for our sector. There are also a number of very good analyses out there, not least those produced by our partner organisations.

This blog, rather than looking to give a comprehensive overview of the legislation, looks at the battles that libraries have, together, won, the bullets we have dodged, and the questions that remain. These last will be important, with the effort to ensure the right rules for libraries now moving to the national level. You can access the final agreed text here.



First of all, the battles won – those areas where we have seen a significant improvement on the text originally proposed by the Commission in September 2016. Through the work of a number of committed Members of the European Parliament, and supportive Member States, there have been important steps forward in some key areas:

  1. Extension of the mandatory text and data mining (TDM) exception to all libraries and cultural heritage institutions (Article 3): originally, the Commission proposed that only research organisations could benefit. However, research libraries may have faced a lack of certainty, and other libraries and cultural heritage institutions would have been excluded, forced to seek licences in order to carry out analysis on the works they hold. Now they can.
  2. A second and broader mandatory TDM exception, applicable to any individual or institution (Article 4): the first version of the TDM provision created extensive uncertainty by trying to distinguish between types of mining which would and wouldn’t be allowed. The final version of the Directive makes TDM exceptions mandatory in all Member States, for all users with legal access, albeit with some smaller limitations. See below for more.
  3. Clarity on cross-border networks of collaboration for preservation (Recital 28): while the need for cultural heritage institutions to work across borders in order to make the most of digitisation equipment was mentioned in the original impact assessment, the first version of the Directive failed to make it clear that such networks were possible. Now it does.
  4. Application of contract override to preservation (Article 7(1)): libraries can be prevented from carrying out preservation activities when the terms of the licences under which works are accessed state otherwise. The original Directive did not address this issue. Now it does.
  5. A wider number of purposes acceptable under digitisation for preservation (Article 6, Recital 27): preservation does not only imply taking a copy of a particularly vulnerable work. Cataloguing, insuring and even lending to another institution for preservation work may also require copies to be made. Improvements to the Directive have offered a greater indication that these are possible under an exception, although libraries will need to work at the national level to ensure these are covered.
  6. A fall-back exception for out-of-commerce works where no collective management organisation exists for a specific category of work in a given country (Article 8(2)): the grand plan in the original Directive was to allow for extended collective licensing of out-of-commerce works? But what about the many sectors and countries where there isn’t a representative, well-governed collecting society to run this, or they don’t have the right mandates? Thanks to the new exception, libraries can now also find a way to digitise and make available works which aren’t available on the market.
  7. Stronger conditions on when a country can opt out of the education exception (Article 5(2)): the original proposal left a lot of scope for Member States to disapply the new education exception and allow licensing to prevail. However, it is clear that many educational licences are not fit for purpose. The final version of the Directive puts the onus on Member States to ensure that before an exception is taken away, licences have to offer a realistic solution.
  8. Protection of the public domain (Article 14): recent cases have seen actors take simple photos of works which have long been in the public domain and claim copyright. This can represent a barrier to their spread, as key texts and images risk being subject to infringement proceedings. The final version of the Directive makes it clear that straightforward reproductions of works in the public domain cannot themselves claim copyright.
  9. A clear possibility to have broader limitations and exceptions (Article 25): the tendency in international copyright law is to favour higher levels of protection of rights, rather than greater scope to pursue public interest goals through exceptions. However, in the final version of the Directive, it is made clear that Member States should feel able to go further if they want.
  10. Extension of education exception to uses by educators in other settings (Article 5(1)): the original version of the directive allowed for teachers to use digital works in the classroom, or online. This potentially restricts the ability of educators to offer courses in libraries and elsewhere. The final version of the Directive clarifies that this is possible under the exception (or licences if applicable).



In the course of the discussions, a number of ideas emerged which would have seriously limited the effect of the new rules, and indeed have created dangerous precedents both for Europe and the rest of the world. Fortunately, they didn’t stick:

  1. Obligation to delete datasets created for text and data mining (Article 3): a number of MEPs tried to argue that if copies of articles and other materials were made in machine-readable formats for text and data mining, these needed to be destroyed afterwards in order to prevent against misuse. This (once again) makes the lazy assumption that exceptions are more or less the same thing as piracy (wrong), and would have meant that experiments carried out with TDM could not be reproduced.
  2. Scientific publications in the scope of the new rights for online press publications (Article 2(4)): in one European Parliament committee, there was an to extend the new planned press publishers right extended to scientific publications. This did not make sense, given the very different market conditions there (not least the fact that authors are not paid for their work). Fortunately, MEPs saw sense and rejected this proposal.
  3. Continued over-protection of technological protection measures (Article 7(2)): the original Directive took the refreshing step of arguing that technological protection measures (TPMs) which prevent the enjoyment of exceptions (for example copying for preservation) should not themselves enjoy legal protection, even for licenced (as opposed to purchased) works. The European Parliament tried to reverse this, leaving any work accessed under licence potentially tied up in TPMs. This proposal did not make it to the final version.
  4. No possibility to cumulate exceptions and limitations (Article 7): a further effort sought to overturn the (highly restricted) TU Darmstadt ruling. This established that it is possible to combine exceptions, as long as these continue to respect the three-step test. Despite this obvious safeguard, rightholders tried to add in a new clause that would prevent ‘stacking’, but which would have at the same time had a huge impact on disciplines such as digital humanities. It didn’t make it.
  5. Automatic right for publishers to benefit from public lending right at the expense of authors (Article 16(2)): one often-overlooked article in the Directive served to protect collective management organisations who had been paying out shares of copying revenues to publishers. Following the Reprobel case in the Court of Justice of the European Union, they risked having to pay this money out to authors instead – the Directive therefore underlines that publishers can claim a share. There were efforts during the negotiation of the Directive to extend this to public lending right, which would have seen authors in a number of countries lose revenue to publishers. The final version leaves the choice to Member States.
  6. Library repositories being covered by new rules on platform liability (Article 2(6)): the first version of Article 13 (now 17) would have meant that any site hosting large volumes of user uploaded content would need to implement filters to check for infringement, or face liability. This would have placed a huge burden on scientific and open education repositories, which play a vital role in giving access to materials. Thanks to extensive work, there is now a clear exception for these, alongside sites such as Wikipedia.
  7. Libraries and individuals being obliged to pay for uses of short snippets of press publications (Article 15(1)): while clearly aimed at GoogleNews, the original version of the Directive gave very broad application to the Press Publishers Right, with non-commercial users such as libraries potentially liable to pay. This would have potentially had a major impact on research work done by librarians for users, as well as catalogues and libguides. Fortunately, the new Directive is clear that non-commercial users are not affected.
  8. Works can only be declared out of commerce when all versions, manifestations and translations are no longer on sale (Article 8(5)): the original version of the Directive indicated that a work could only come under the new provisions when all versions, manifestations and translations were no longer on sale. This would have seriously limited the impact of the Directive, given that different language versions are not necessarily interchangeable, and that researchers may well need a specific edition, and so cannot complete their work with a substitute that is still on sale.
  9. 20-Year duration for press publishers’ rights (Article 15(4)): the first version of the Directive gave press publishers a right for 20 years, despite any evidence of this being proportionate or justified. This would have seriously limited the work of libraries working with the press, as well as research into recent history. In the end, the duration of the right was limited to two years.
  10. Retroactive effect of the new press publishers’ right (Article 15(4): at first, a lack of clarity in the text could have implied that even existing publications would benefit from the new possibilities. This would have put into question work already done using this material, bringing major new uncertainty. The final version of the Directive is clear that there is no retroactive effect.



As is almost always the case with European legislation, a lot comes down to transposition – the steps taken to turn EU rules into national ones. An added factor in this is the lack of precision in many parts of the Directive. This is inevitable, and offers opportunities to ensure positive outcomes. At the same time, it also means that libraries will need to play close attention.

Here are ten more things to watch out for:

  1. Rules around permissible security measures in text and data mining (Article 3(3)): the Directive underlines that rightholders are allowed to take security measures in order to protect their works. At the same time, this should not lead to the cancelling out of the TDM exception in the first place. Finding the right balance here – and preventing overly restrictive approaches – will be important if the exception is to have its full effect.
  2. Rules around opting out of text and data mining for all individuals and institutions (Article 4(3)): as highlighted above, a major step forwards was the mandatory TDM exception for the benefit of people and organisations outside of research centres, libraries and cultural heritage institutions (if they have legal access to the works mined). There is a catch here, in that rightholders can explicitly state that they do not want their works mined. It will be important to work with Member States to ensure that the rules around this are specific enough to mean that opting out is the exception, not the rule.
  3. Definition of who can benefit from the education exception (Recital 20): despite our efforts, the education exception formally still only applies to educational establishments, although it can be used (under the authority of a formal education institution) in libraries and cultural heritage institutions. There is, nonetheless, a possibility to ensure that libraries (or groups that offer training and support to people in libraries) are recognised as educational establishments in national law. This would open up useful new possibilities for libraries to fulfil their potential as places for learning.
  4. Application of the opt-out from the education exception (Article 5(2)): as highlighted above, there is the possibility for Member States to decide that the new education exception does not apply in situations where there are licences adapted for educational uses on offer. There is likely to be extensive rightholder lobbying in favour of excluding broad categories of works from the exception. It will be up to libraries and educators to ensure that the conditions laid down by the Directive (that licences are ‘suitable’, ‘cover the needs and specificities of educational establishments’ and are ‘easily available’) are fulfilled.
  5. Application of the exceptions in the out of commerce works exception (Article 8(3)): a major area for work will be how to define where cultural heritage institutions need to ask for licences, and where they can benefit from the exception in order to digitise and make available out-of-commerce works. It will be up to member states to decide what it means for a collective management organisation to be ‘sufficiently representative of rightholders in the relevant type of works or other subject matter and of the rights that are the subject of the licence’.
  6. Application of rules to out-of-commerce works by third country nationals (Article 8(7)): one weakness of the Directive is the focus on trying to ensure that works by people from outside the European Union are not covered by new rules on out of commerce works. For many European countries, this will be difficult, given that they use major world languages, and so telling the difference between a French and a Quebecois work, for example, may be difficult. Member States will need to take a sensible approach to this point.
  7. Application of the definition of a good faith search on whether a work is in commerce (Article 8(5)): the Directive suggests that before a work can be declared out-of-commerce, a ‘reasonable effort’ must be made to ensure that it is not available to the public through normal commercial channels. Given the difficulties already encountered around the Orphan Works Directive, it will be important to ensure that national implementation does not create disproportionate obligations on cultural heritage institutions.
  8. Definition of which works can be preserved under the preservation exception and of the activities and purposes covered (Article 6, Recital 27): the Directive’s preservation exception, as set out above, does allow for copying for preservation purposes, while leaving the possibility for Member States to pass other exceptions and limitations for internal uses. There is, therefore, a key opportunity to ask for exceptions that allow for any core library uses of works to be covered.
  9. Management of the dialogues planned for the text and data mining exception, the out of commerce works provisions and the upload filters provision (Articles 3(4), 11, 17(10)): a number of articles provide for dialogues between stakeholders on how the rules should be applied. It will be necessary to pay attention to the composition, terms of reference and other aspects of these discussions in order to ensure that the results reflect the interest of libraries and their users. This will, in particular, be the case around protection of freedom of expression under the provisions on platform liability.
  10. Protecting the quotation exception (Article 15): The press publishers’ right creates a worrying precedent for protection being given to ‘short extracts of a work’. This risks affecting how legislators and courts think of the concept of quotation in general, as well as criticism and review. While the scope of the Article in the Directive is narrow, the precedent is certainly worrying.

For more, see our resources page about the European reforms. You can also see analysis and reaction by our partner organisations:

LIBER: New European Copyright Directive: A Detailed Look

EBLIDA: Long Read : Final stretch for the Digital Single Market Directive

SPARC Europe: A new Copyright Legislation for Europe. How will this impact Open Access?

EUA: EU Copyright Directive: EUA cautious about adopted agreement

Bad Maths in the European Copyright Reform, or How 9A Doesn’t Fit into 13

Meme - Solution, you keep using that word. I do not think it means what you think it means

While IFLA has focused most of its efforts throughout the European copyright reform process on those provisions that are most relevant to libraries, it is clear that for many, Article 13 is where it’s at.

This makes sense. Article 13 is a big deal, threatening to overturn one of the key pillars of the development of the internet – the idea that intermediaries (platforms, forums, services such as Dropbox), should not be held liable for content uploaded by their users.

By changing this, and making intermediaries liable, the Directive risks placing huge pressure on such platforms – which have taken on a massive role in the way we communicate and express ourselves – to filter content even before it is uploaded.

In effect, users would be treated as guilty until proven innocent. And the tools used to check innocence are flawed, given their inability to spot legitimate uses of works, and the fact that there will be little penalty for platforms from blocking free speech.

Aware of how controversial this is, supporters of Article 13 have tried to argue that there is an alternative. Platforms could sign blanket licences that could cover all works that could potentially be uploaded. They point out that the new Article 9A, which offers legal clarity to Extended Collective Licensing (ECL) schemes, allows for this.

To offer a short definition, ECL schemes are those where a collective management organisation (CMO) – which usually manages licensing for its members – can also sell licences for non-members, and should then try to redistribute royalties to these non-members.

The argument can seem attractive, and would doubtless benefit the biggest platforms (the only ones who can pay for such blanket licences) and the collective management organisations that run such schemes.

However, two pieces of research produced by IFLA last year underline the fundamental problems with the assumption that Article 9A is what will make Article 13 workable.


Patchy at Best – CMO Coverage in Europe

A first looks at the coverage of collective management organisations – i.e. in how many countries, and how many sectors, do CMOs exist. In effect, to be able to offer a blanket licence for works in a particular sector, there needs to be a CMO in the first place. But this is far from being the case everywhere.

As a survey across EU Member States and beyond underlined, coverage is patchy at best, both in terms of countries and sectors. Barely 60% of countries covered have CMOs in sectors such as photography and broadcasting rights, and only half have them for film.

The consequence risks being that there is an effective block on all content from countries where CMOs don’t exist and so cannot offer blanket licences. There is then a chance, in effect, that people in these countries trying to express themselves – through photos, book reviews, film reviews, critiques or parodies – will simply be unable to do so online.

Clearly, in time, it is possible that new CMOs will emerge to fill the gap. But this is a long way off, and it takes time for a new CMO to gain members and trust.


A High Bar for Successful ECL

A second challenge is in getting the conditions right for extended collective licensing. As an IFLA report drawing on experience from around the world shows, this is not easy.

As the contributors underline, for ECL to be seen as acceptable, it is important that they actually have enough members to be representative, and that these members give them the relevant mandates (across all sectors, less than 20% of countries have CMOs that allow for mass-uploading of works to the internet).

The CMO also needs to offer the relevant rights (not always the case, as the example of Sweden shows), and be well-governed and trusted. Sadly, anecdotal evidence suggests that in a number of countries, the reputation of the CMO can make libraries and others unwilling to pay. There also needs to be a clear and simple possibility to opt out.

More fundamentally still, there are many types of work which are not appropriate for licensing in this way, notably works that were never intended to be sold (such as archival materials), or those which are available under a Creative Commons licence.

At a recent discussion at the London Book Fair, it was not denied that some blanket licensing schemes may indeed involve claiming remuneration for the use of such licences.


The argument that Article 9A offers a solution to the problem created by Article 13 is optimistic at best. In some countries, with a comprehensive CMO infrastructure and a tradition of collective licensing, it may work, although will still leave huge power in the hands of major platforms and CMOs. But this is far from true everywhere.

Indeed, the fact that such arguments are being made, with Article 9A providing a patch for Article 13, simply underlines how much of a mistake Article 13 is in the first place. Europe would do better to lose it.


Read more about IFLA’s work on the EU Copyright Reform.

The Good, The Bad and (Avoiding) the Ugly: A Way Forwards on the Copyright Directive

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, The Bad and the Ugly. ACJ1, CC-BY-NC-SA https://www.flickr.com/photos/ajc1/4684652569The 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.

Friends scene. Source: https://devrant.com/rants/1546587/this-will-happen-in-java-when-you-declare-the-class-with-wrong-nameHowever, 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.