Creative sector applauds European Parliament for adopting controversial Copyright Directive

By Emmanuel Legrand

After one of the lengthiest and most virulent legislative battle in recent history, the European Directive on Copyright in the Single Market was finally adopted by the European Parliament in a 348-274 vote (and 36 abstentions). Members of the Parliament had previously discarded by 5 votes a motion to allow amendments to the draft adopted after the trilogue discussions in February. 

  Following the vote, Commission's Vice-President for the Digital Single Market Andrus Ansip and Commissioner for Digital Economy and Society Mariya Gabriel said the Directive “ensures the right balance between the interests of all players — users, creators, authors, press — while putting in place proportionate obligations on online platforms."

  They said that the Directive will protect freedom of expression by settings "strong safeguards for users, making clear that everywhere in Europe the use of existing works for purposes of quotation, criticism, review, caricature as well as parody are explicitly allowed. This means that memes and similar parody creations can be used freely."

  Ansip and Gabriel added, "At the same time, the Directive will improve the position of creators in their negotiations with big platforms which largely benefit from their content. Writers, journalists, singers, musicians and actors will find it easier to negotiate better deals with their publishers or producers. The new rules will also allow research organisations, universities, schools, libraries and museums to use more content online. The Directive takes account of new technologies to ensure that researchers can use text and data mining to its full potential."

So what now?

Before the Directive becomes the law of the EU, there are still a few more steps. The Directive will need now to be approved by the European Council, which should not be a problem since the Council endorsed the compromise draft that was voted by Parliament. The Council’s vote could take place either April 8 or 15. The Directive will then be published in the EU’s Statute Book, and will enter into force 20 days after publication. From then, EU member states will have 24 months to transpose the Directive into their own legislation.

  One caveat to that is the British situation. If Brexit is finally acted, the fate of the Directive in the UK will be depending on the deal (or no-deal) made with the EU, and if the UK continues to abide by some "acquis communautaire." The British creative sector has emphatically been supportive of the Directive, in particular the provision in Article 17 (formerly Article 13) on the "value gap."

  Another grey area is Poland, where ruling party leader JaroslawKaczynski said the Directive threatens freedom and hinted that his Law and Justice party will implement the Directive "in a way that will preserve freedom." [Coming from a government that has been attacking free speech and controlling public media, this accusation is in fact quite ironic.]

What will the Directive change?

This is the first significant copyright overhaul in Europe since the 2001 Copyright Directive. It covers a wide range of topics, among which:

- Article 17 (formerly Article 13): by requiring UGC-enabling platforms such as YouTube to negotiate licensing deals with content owners, and pay "fair remuneration" to rights holders, the Directive is the first attempt in the world to address the 'value gap'. The law will make platforms liable for hosting unlicensed content, requiring filtering technologies to address the issue of infringing content. "This is a hugely welcome clarification," wrote Gadi Oron, Director General of the International Confederation of Societies of Authors and Composers, in an op-ed for MBW.

  After the trilogue discussion, the Directive included a distinction between “large” platforms and “small” platforms, and attributed different obligations to each. An online platform is deemed “large” if it has existed for at least three years, has revenues in excess of €10 million annually, and has more than 5 million unique monthly users.

  The law states that in the absence of licensing agreement with right holders, a "large" online platform has to show it made its “best efforts” to identify the right holder, get a permission from the right holder; prevent unauthorised content from being uploaded to the online platform; expeditiously take down unauthorised content upon notice; and prevent future unauthorised uploads.

  However, as noted by lawyers Michael Rounds and Andrea LaFrance from law firm Brownstein Hyatt Farber Schreck in The Hill, the Commission "failed to use its own 'best efforts' in providing any guidance" and define "what exactly is considered 'best efforts' to prevent infringing activity from lingering on these online platforms."

- Article 15 (formerly 11): introduces a neighbouring rights for news services. Again, here, the devil being in the details, it will be challenging to anticipate how this will shape up, and what will be the reaction of platforms like Google and Facebook, both main users of new slinks.

- Article 14-16: introduces a right to fair remuneration. Rights holders, in particular creators are entitled to fair and proportionate remuneration. This will mostly affect creators in the AV field who do not have "the negotiating power to secure an equitable share in the success of a project they have worked on and helped flourish," according to CISAC's Oron.

Who said what?

The vote was welcomed by representatives from the creative sector, many of whom had made the trip to Strasbourg of March 26. For tech companies and free internet advocacy groups, the event was described as a dark day for digital freedom and open internet.

> "This is a really important decision that has enormous implications worldwide. It recognises that a 21st century internet needs a 21st century level of protection for creators.  It confirms that the big tech companies which use creative content must be made to negotiate fairly with the creators who fill their pipes and cables with their works."
By Jean-Michel Jarre, electronic music pioneer and President of CISAC.

> "By voting to pass the Copyright in the Digital Single Market Directive, the Parliament has endorsed a global game changer for the creative community. CIAM will be proactive in encouraging other regions to follow Europe’s lead in adopting measures that reflect a genuine commitment to the arts and the positive contribution the creative industries make to our societies."
By CISAC's music creators' council CIAM.

> "With this new historical milestone for cultural exception, Europe sets a modern framework for creation in the digital age in which creators and journalists are entitled to a fair remuneration for their work."
By France filmmakers' organisation ARP.

> "This is a landmark day for Europe’s creators and citizens, and a significant step towards a fairer internet. Platforms facilitate a unique relationship between artists and fans, and this will be given a boost as a result of this directive. It will have a ripple effect world wide."
By Helen Smith, executive chair of indie labels' body Impala.

> "Four years of titanic tussling later, our work to solve the 'Value Gap' now begins a new stage after this vote. Namely, to ensure that those who make the music make a fair return."
By John Phelan, director general of international music publishing trade association ICMP.

> "We strongly encourage the US government to look to this law as a guide for future legislation, and look forward to the day when independent publishers and songwriters throughout the entire world will be granted the rights now established by the EU."
By the US Association of Independent Music Publishers (AIMP).

> “We thank lawmakers for their efforts in navigating a complex environment to pass a Directive with noteworthy implications for the content community. We now look forward to the implementation stage, where we will work with the EU’s Member States to ensure the Directive is transposed into national law in a manner fully consistent with its aim and key principles of European and international law.”
By Frances Moore, CEO of IFPI.

> "This is an unprecedented victory for European creators, who will now be able to exercise their rights and receive fair remuneration from platforms such as YouTube."
By Anders Lassen, President of GESAC, the European umbrella for societies of authors and composers.

> “This is about modernising the Internet and it’s a massive step forward for consumers and creators alike."
By Robert Ashcroft, CEO of British rights organisation PRS for Music.

> “The EU copyright directive is improved but will still lead to legal uncertainty and will hurt Europe’s creative and digital economies. The details matter, and we look forward to working with policymakers, publishers, creators and rights holders as EU member states move to implement these new rules.”
By a Google spokesperson as published in the Guardian.

> "EU netizens will need to organise and support independent European digital rights groups willing to challenge the Directive in court. And outside Europe, friends of the Internet will have to brace themselves to push back against copyright maximalists attempting to export this terrible Directive to the rest of the world. We must, and we will, regroup and stand together to stop this Directive in Europe, and prevent it spreading further."
By Cory Doctorow for the Electronic Frontier Foundation.

> "A dark day for internet freedom." 
By German MEP Julia Reda.

> "A dark day for the open internet. The EU has just decided to end the experiment and lock in the internet giants and legacy copyright gatekeepers."
By TechDirt founder Mike Masnick.

(Picture courtesy Blaise Mistler)