Sunday, February 24, 2019

(At last) European Parliament will vote on the final draft of the Copyright Directive

By Emmanuel Legrand

The saga of the European Copyright Directive continues, with two more hurdles to pass: the first one, this coming week, will see the Committee on Legal Affairs (JURI) vote on the compromise text that has been approved by the European Commission, Council and Parliament; and then the final vote in plenary by the Parliament between March 25 and 28.   

The text proposed by the Romanian Presidency and adopted in the "trilogue" process appeared like a victory for rights holders who managed to maintain most of the provisions in Article 13, about the liability of online services regarding uploaded content, and also Articles -14 to 16 about fair remuneration for creators.

Following the agreement, a wide range of organisations representing the creative industries and creators (authors, composers, writers, journalists, photographers as well as news agencies, audiovisual producers, book, press and music publishers) welcomed the compromise and called on EU member states and the European Parliament to adopt the text of the Copyright Directive as agreed in trilogue.    

A 'historical opportunity'   

"This is a historical opportunity. We need an internet that is fair and sustainable for all. This is why we urge policymakers to adopt the Directive quickly, as agreed in trilogue negotiations," wrote the signatories, including independent label's body IMPALA, which was among the organisations suggesting early February that "no Directive was better than a bad Directive."  

IMPALA's board has now endorsed the Copyright Directive after examining the text agreed in trilogue. "We welcome the text and member state approval," said IMPALA Executive Chair Helen Smith. "This will be the first piece of legislation anywhere in the world clarifying the position of platforms as regards copyright and licensing. It is a balanced compromise, taking on board the views of stakeholders representing different interests."   

Not part of the signatories was the IFPI, which represents the main record companies, and which was among those who signed off on the "no Directive is better than a bad Directive" statement. 

Reacting to the text agreed in the trilogue, IFPI CEO Frances Moore said: “We acknowledge the efforts made by lawmakers to try to find a way through such a complex area. Certain of the Article 13 provisions of the Copyright Directive are notable. This is the first legislation confirming that User-Upload Content platforms perform an act of communication to the public, and must seek authorisation from rights holders or make sure that there is no unauthorised content available on their platforms. The Directive also includes a 'stay down' provision requiring platforms to keep unlicensed content down – another first.” Not the warmest endorsement...  

A well-functioning digital single market   

Valer Daniel Breaz, Romanian Minister for Culture and National Identity, said that the agreement on the draft Directive "is a sign of our determination to set up a well-functioning digital single market that encourages the development of new content-based businesses in the interest of all European citizens."  

The issues tackled by the Directive can be grouped under three categories: 

> Adaptation of copyright exceptions/limitations to the digital and cross-border environment by introducing mandatory exceptions to copyright for the purposes of text and data mining, online teaching activities and the preservation and online dissemination of cultural heritage.  

> Improvement of licensing practices to ensure wider access to content including the exploitation of works that have stopped being commercialised, issuing of collective licenses with extended effect and rights clearance for films by video-on-demand platforms.  

> Achievement of a well-functioning marketplace for copyright, with the introduction of a new right for press publishers for the digital use of their press publications (Article 11) and a clarification of the legal framework online content sharing platforms operate (Article 13). Platforms will now have to obtain a license for copyright protected works uploaded by users unless a number of conditions provided for in the directive are met.  

The Directive also enshrines the authors' and performers' right to "appropriate and proportionate remuneration upon the licensing or transfer of their rights." It also introduces a transparency obligation concerning the exploitation of licensed works and a remuneration adjustment mechanism, alongside a dispute resolution mechanism.  

Harm online innovation   

Opponents to the Directive, mostly the big tech companies, have vowed to continue the fight at the Parliament. The Computer & Communications Industry Association (CCIA) said the compromise text "is a lost opportunity to achieve a balanced and future-proof EU copyright reform," according to CCIA's Vice President Christian Borggreen. He added, "We fear the law could harm online innovation, scale-ups, and restrict online freedoms in Europe. We urge governments and Members of the European Parliament to thoroughly assess the consequences of this text before officially adopting it.”  

MEP Julia Reda, who led the opposition to the text, said that opponents must now focus on the Parliament. "We’ve already demonstrated last July that a majority against a bad copyright proposal is achievable," she wrote on her blog. "The plenary can vote to kill the bill – or to make changes, like removing Articles 11 and 13. In the latter case, it’s up to the Council to decide whether to accept these changes (the Directive then becomes law without these articles) or to shelve the project until after the EU elections in May, which will reshuffle all the cards."   

Reactions to the adoption by the European Commission, council and Parliament of the draft Directive include:   

"A major victory of a Europe that protects, a Europe of culture and creation." 
By French President Emmanuel Macron.  

“Thank you to the #copyrightdirective negotiating teams for your hard work on finding a compromise that delivers for all parts of the society and economy. This is a major achievement for Europe. #copyright #ro2019eu.” 
By European Commission Vice President Andrus Ansip.  

"Thanks to #copyrightdirective negotiators on finding agreement on new EU directive. Time to finish job & formally adopt it. Europe shows it cares for its creators in digital market & aims to protect their work & that of next generations. Strong & positive signal to rest of world." 
By electronic music artist and President of CISAC Jean-Michel Jarre.  

“Defying common sense, evidence-based policy-making, and the will of millions of Europeans, the European Parliament and Council are making the already-awful Copyright Directive even worse. Unless this political agreement is rejected or modified by the European Parliament, the Copyright Directive will be a disaster for the basic values and functions of an open internet, and a direct threat to free expression everywhere." 
By Gus Rossi, Global Policy Director at Washington, DC-based internet advocacy group Public Knowledge.  

"The Members of the European Parliament are going to be fighting an election right after voting on this Directive, which is already the most unpopular legislative effort in European history, and that's before the public gets wind of these latest changes. Let's get real: no EU political party will be able to campaign for votes on the strength of passing the Copyright Directive — but plenty of parties will be able to drum up support to throw out the parties that defied the will of voters and risked the destruction of the Internet as we know it to pour a few million Euros into the coffers of media companies and newspaper proprietors — after those companies told them not to." 
By Cory Doctorow on behalf of the Electronic Frontier Foundation, in a blogpost titled 'The Final Version of the EU's Copyright Directive Is the Worst One Yet'.

The European Commission's proposed Copyright Directive was approved in a 16-9 vote by the Parliament's Legal Affairs Committee (JURI), paving the way for a plenary vote during the March 25-28 session. In the meantime, both partisans and opponents to the Directive will continue lobbying the Parliament. Pirate Party MEP JuliaReda‏ noted on Twitter that over a quarter of the JURI MEPs who voted for the Directive were representatives of France. She added: "In the plenary, French MEPs make up less than 10%. Majorities will look very different. #SaveYourInternet #Article11 #Article13."

Wednesday, February 13, 2019

Discussions on Europe's Copyright Directive reach final stage

By Emmanuel Legrand

European policy-makers are putting the final touches to a ​draft Copyright Directive. Interested parties — Commission, Parliament and Council — have started on Monday Feb. 11 the trilogue discussions with the goal to reach a final agreement by the end of the week.

  Last week, twenty of the 27 member states part of the Committee of Permanent Representatives in the European Union (COREPER) approved the compromise text agreed by France and Germany and presented by the Romanian presidency, opening the doors to final discussions. As part of the compromise, small companies operating online platforms that are less than three years old, making less than €10 million in annual turnover and with no more than 5 million monthly users will not be required to implement filtering devices to monitor potential copyright infringement (Article 13).

  "As we start the week of final #copyright negotiations, my message to @Europarl_EN & @EUCouncil: We have a responsibility to find a compromise that works for all. I see no reason why a deal is impossible. It is possible to protect creators and ensure vitality of internet economy," wrote on Twitter Commission Vice-President AndrusAnsip.

Better no Directive than a bad Directive?

  The final talks were taking place as the coalition of creative industries organisations pushing in favour of a strong Copyright Directive started showing signs of cracks. On Feb. 7, music industry trade bodies IFPI (record labels), ICMP (music publishers) and IMPALA (independent labels) sided with the Association of Commercial Televisiona nd football leagues to call on negotiators "not to proceed with Copyright Directive on the basis of current proposals." 

  The signatories of the joint statement said that "as rights holders we are not able to support it or the impact it will have on the European creative sector" and that they "would rather have no Directive at all than a bad Directive."

  The position was criticised by the UK Council of Music Makers (CMM), which includes BASCAFeatured Artists CoalitionMusic Managers ForumMGPand the Musicians' Union. CMM said it was "hugely disappointing to see the music labels and publishers disregard the interests of their creators and artists in this way."

  CMM added: "They are trying to halt the directive not only because of the latest wording of article thirteen but because they want to avoid the improvements to transparency and fairness that articles fourteen to sixteen bring.”

  IMPALA Executive Chair HelenSmith clarified its organisations' decision to ask European policy-makers to drop the Directive. She said the proposed text "still has some holes in it and they need to be fixed before the cake can go in the oven." IMPALA added that "subject to the fixes that are still needed to the text" it "fully supports the Directive including article 13 and the provisions for performers and authors in Articles 14 to 16." Smith concluded: “We have backed this proposal from the very beginning, but our support is not at any price."

Creators want a Directive

  Meanwhile, GESAC, which regroups the main rights societies in Europe, the International Confederation of Societies of Authors and Composers, and a whole range of organisations representing creators in music, visual arts, audiovisual, journalism urged trilogue negotiators "to work constructively to improve and to adopt the Copyright Directive in the Digital Single Market at this week’s trilogue meetings."

  In a joint statement, they added, "The current mandate from COREPER on Friday is a crucial step towards the Directive’s adoption, even though further improvements are needed to make the text truly meaningful for the cultural and creative sectors. This Directive has been long sought to create a necessary level playing field for all creative sectors in the European Digital Single Market, whilst giving consumers better access to more content in a secure environment."

  They concluded: "Without the Directive, creators will be left with no guarantee of obtaining a fair remuneration online and our sectors will be subject to great legal uncertainty regarding future practices. Failing to adopt the Directive would mean missing a historic opportunity, be extremely detrimental to European culture, and also represent a fundamental failure for European policy making.  The time has come to make the final effort to improve the text and reach an agreement at the trilogue. It is time to show that the European Union cares for its citizens, creators, values and cultural diversity and can stand up to protect them."