France builds coalition to apply pressure on the European Commission over the application of Article 17

 


By Emmanuel Legrand

France continues to apply political pressure on the European Commission by enlisting a coalition of six other countries that are objecting to the Commission’s future guidance on the application of Article 17 of the Copyright in the Digital Single Market Directive.

  Alongside Croatia, Denmark, Greece, Italy, Portugal and Spain, France has drafted a "non paper" dealing with the implementation of Article 17, which calls for digital service providers to make "best efforts" to license content or take down unlicensed content. A "non paper" is an informal document that EU member states can circulate among other members of the EU, the Council of Europe and/or the European Commission, to test the reaction on some issues, without being binding.

  The initiative of France is motivated by the ongoing discussions between stakeholders and members states, under the aegis of the Commission, regarding the implementation of the Directive. However, several members states as well as the creative sector have become concerned that the discussions have actually been used to water down some points in the Directive. A group of over 100 organisations in the creative sector published an open letter a few weeks ago expressing serious concern that the substance of the Directive was being watered down by the process.

Compliance with the Directive

  The non paper noted that Article 17 was "the result of long political negotiations and rests on a delicate balance between the interests of rights holders, users and online content sharing services," and that it was "paramount" that the article was "applied in compliance with the objective, the provisions and the delicate balance which underpins Article17."

  For the signatories, Article 17 "will play an essential part in ensuring that copyright can, in the future, still play its role as an incentive and are ward for creativity. By contributing to create a level playing field between the various players giving access to protected content, it will also bring more fairness to the digital single market: a clear regime will now apply to content sharing services with compete with traditional online content distributors."

  They added: "Some orientations taken by the Commission in the document subject to the targeted consultation open to the participants to the stakeholder dialogue on Article 17 raise serious concerns. By proposing new concepts such as 'upload likely to be legitimate' and suggesting, based on such concept, a modus operandi for the application of Article 17 where instructions from rights holders would simply be set aside in the context of the preventive measures, the document exceeds the purpose of the guidelines to be adopted by the Commission and raises very serious issues."

New damaging concepts

  It continues: "The negotiation of Article 17 has lasted 2 years and half and generated much discussion and debate. Proposing new concepts absent from Article 17 and more generally from the copyright acquis, and entrusting these concepts with a role that will impede the functioning of preventive measures is not only extremely confusing in light of the objective and the provisions of Article 17, it is also extremely damaging."

  In their conclusion, they reminded the Commission that "only if the political and legal agreements negotiated and voted by the co-legislators are fully preserved, will Article 17 be able to secure a clear and trusting environment where platforms and rights holders can smoothly collaborate, users can benefit from the new advantages introduced by the directive and rights holders are truly and effectively encouraged to grant licenses on a voluntary basis."

  Sources in Brussels say the method used by the Commission has raised concern among several members states, including some that did not support the Directive (such as the Netherlands, Belgium, Sweden, Finland), on the grounds that if the Commission used the same methods on any Directive approved by the Council, and voted by the Parliament, it could significantly change the legislative process in Brussels by letting arrangements take place through the backdoor.

A push back by member states

  "It is a push back by member states saying that the European Commission is not sticking to the original text," said one Brussels-based source. "We also understand that other member states disapprove of the direction of travel of the commission, even those who voted against. They might not have like the actual text but they are saying that we have to stick to it. Imagine the mess every time if you could make legislation by the backdoor?"

  Another source explained that the non paper and the rights holders's letter "obviously put pressure on the Commission," and warned that organisations from the creative will "keep the pressure up" in the coming weeks.

  The next steps in terms of process will consist in an inter-service consultation, when different EC services are being asked for their comments, and the guidance should be published by the end of the year.