European Commission's attempts to re-write Art. 17 worries the creative sector

 

By Emmanuel Legrand

In an open letter is addressed to Thierry Breton, the European Commissioner responsible for copyright, over 20 organisations from the European creative sector have expressed their concern about the way Article 17 of the 2019 Directive on Copyright in the Digital Single Market, which addresses the value gap, is being interpreted in the Commission's consultation.

  The organisations are worried that the consultation has gone in a direction that was not intended by EU legislators and that it is "going against its original objective of providing a high level of protection for rightsholders and creators and to create a level playing field in the online Digital Single Market."

  At the heart of the issue is the way Article 17 is being interpreted. After the Directive was voted by the Parliament in 2018, the Commission's Internal Market division, which oversees copyright issues, launched a consultation on how Article 17, which tackled the so-called "value gap" by making licensing of content the norm for digital platforms.

Going against the objectives of the Directive

  What the signatories of the letter are objecting to is the way the consultation is heading. The letter reads: "We are very concerned that, in its Consultation Paper, the Commission is going against its original objective of providing a high level of protection for rightsholders and creators and to create a level playing field in the online Digital Single Market. It interprets essential aspects of Article 17 of the Directive in a manner that is incompatible with the wording and the objective of the Article, thus jeopardising the balance of interests achieved by the EU legislature in Article 17."

  The signatories indicate that "by interpreting Article 17 in a manner that is contrary to the intent of the EU legislature and the EU copyright acquis, the proposed guidance amounts to an attempt to rewrite the Directive and amend EU copyright law without due legislative process."

  They conclude: "Damaging our business by rewriting what has already been agreed in the Directive completely cuts across our ability to contribute to Europe’s recovery. We urge the Commission to instead encourage a faithful transposition of the Directive. Without prejudice to fundamental rights, including the freedom of expression, we detail in annex, some of our main concerns with respect to the proposals that go beyond the legal limits of the Commission’s authority under EU law."

Commission overstepping its guidance role

  The Commission has yet to respond to the letter, but Helen Smith, Executive Chair of independent music companies' trade organisation IMPALA, said the rationale behind the letter was to voice concern that the Directive was at risk of being re-interpreted in the Consultation process.

  "The Directive is meant to re-balance the online market by reinforcing the position of creators and citizens in their dealings with platforms," said Smith. "It constitutes a significant step towards a fairer internet. Why rewrite the rules now? The Commission is at risk of overstepping its guidance role by re-opening the Directive, which is the result of a carefully crafted compromise reached by the co-legislators, the European Parliament and Member States."

  Helen Smith continued: "The EU has recently flagged that culture is a priority for European recovery and we have asked member states to implement it urgently as a crisis response. That's going to be tricky if the directive is rewritten. The value gap remains the biggest barrier to growth in the cultural sector today." 

Double-dillution of obligations

  Among the bones of contention between the creative sector and the Commission are the definition of what constitutes “communication to the public,” the interpretation of the application of the proportionality principle applied to Online Content Sharing Service Providers (OCSSP), the conditions that an OCSSP has to meet to benefit from the special liability regime, and the Commission’s call to Member States to implement additional exceptions to the ones specifically identified in Article 17. 

  In particular, the Directive calls for digital service providers to make "best efforts" to identify right holders, and when unlicensed content is flagged, DSPs have to take it down. However, the Commission is making proposals that creative industries see as watering down the intent to address safe harbours. 

  Overall, the signatories worry that the Commission’s "proposal would lead to a double-dilution of the unlicensed OCSSPs’ obligations under Article 17(4) to act as diligent economic operators" and that the Commission’s proposal "would create a new de facto limitation to copyright for uses 'not likely to be infringing', in contradiction with the internal logic of this Article and the legal framework for exceptions under EU and international copyright law."The consultation has been opened to a large range of stakeholders, from rights holders to civil society representatives. Representatives from the creative side are concerned that tech companies such as Google are using the consultation process to undo what has been achieved through the legislative process. 

 Comply with human rights requirements

  On the other hand, organisations such as the Electronic Frontier Foundation are adamant that the consultation is the right forum to voice their objections to the Directive. In a blogpost, EFF's International Policy Director Christoph Schmon wrote: "During the stakeholder meetings, we made a strong case for preserving users’ rights to free speech, making suggestions for averting a race among service providers to over-block user content. We also asked the EU Commission to share the draft guidelines with rights organisations and the public, and allow both to comment on and suggest improvements to ensure that they comply with European Union civil and human rights requirements."

  The EFF has presented a list of recommendations to ensure that the Directive "complies with European Union civil and human rights requirements." Hight on the list is the following proposal: "Ensure that the platforms’ obligation to show best efforts to obtain rightsholders’ authorisation and ensure infringing content is not available is a mere due diligence duty and must be interpreted in light of the principles of proportionality and user rights exceptions."

  This proposal actually flips the intent of Article 17, which established as the norm that content has to be licensed by rights holders, whereas the EFF's wording makes it the exception.

  Signatories include the International Federation of the Phonographic Industry (IFPI), ACT - The Association of Commercial Television, CEPI - The European Coordination of Independent Producers, ECSA - The European Composer and Songwriter Alliance , EPC - The European Publishers Council, EUROCINEMA, FIAD - The International Federation of Film Distributors’ Associations, FIAPF, GESAC – The European Grouping of Societies of Authors and Composers, ICMP - is the world trade association for music publishers and companies, IMPALA is the European association of independent music companies, IMPF - The Independent Music Publishers International Forum, IVF – The International Video Federation, Mediapro, MPA – The Motion Picture Association, ROC - The Sports Rights Owners Coalition, STM - is the leading global trade association for academic and professional publishers, Telefónica, The Union Internationale des Cinémas/International Union of Cinemas (UNIC).