On 25 May 2018, the European Copyright Society (ECS) hosted a very informative and encouraging conference on the current status quo of the pending copyright reform. The title of the summit was well-chosen and equally simple: “EU copyright, quo vadis? – From the EU copyright package to the challenges of Artificial intelligence“. Less simple, however, are the solutions to be found to the multitude of urgent questions discussed by the panel as well as in the auditorium.

As a matter of fact, the core debate focused on the Draft Copyright Directive COM(2016) 593. The latest version of this draft was published by Council’s current Presidency on 17 May 2018 (read our comment on the draft version here). Accordingly, this draft formed the basis for discussion.

The Copyright Reform so far

The first speaker, Jaime De Mendoza Fernández, a legal officer within the Copyright Unit of the Commission’s DG Connect, summarized the efforts of the institutions to move forward with the proposal. The Council has been working on its position for more than a year now, arriving (so far) at the document of 17 May 2018. At the European Parliament, the JURI Committee and its Rapporteur Axel Voss are in charge of preparing a compromise upon which the majority of the parliamentarians can agree. The committee aims to have a final vote on 20/21 June 2018. Once both the Council and Parliament have been furnished with a definite mandate, the trilogue will start. Presumably, this will happen after the summer break.

Text and Data Mining

Christophe Geiger focused specifically on the Text and Data Mining (TDM) exceptions as set out in Articles 3 and 3a of the Draft Directive. He pointed out the scope of the provision, which he personally deems too narrow. As it stands, Article 3(1) excludes innovative startups or journalists, which are not research organizations. Journalists are seen to fulfil a crucial role in society with regard to the freedom of expression and information, and undermining their work could in Geiger’s opinion be considered unconstitutional. He also pointed out the complexity and negative effect of mandatory deletion of content in the case of scientific research (Article 3(1a)). The implications of a TDM exception for private business was also debated. A final  issue touched upon was the necessity of “lawful access” to the work: It was argued that this provision endangers investigative journalism, such as the Panama Papers case, which sometimes relies on sources obtained without lawful access.

Education and Library exceptions

Séverine Dusollier then presented the exceptions for education and libraries (Articles 4 and 5). On the use of optional instead of mandatory exceptions, she stressed that the resulting fragmentation could weaken existing license-based systems in some Member States. She also questioned the formulation of Article 5: The right for cultural heritage institutions to make copies of works is now only allowed “for the purpose of the preservation of such works […] and to the extent necessary for such preservation“, whereas it was only implicitly limited before.

Press publishers’ right

Jonathan Griffiths outlined some particular issues raised by the new right for press publishers. The provision’s purpose and scope remain unclear, and that leads to uncertainty (which could be intentional). As it was already stressed elsewhere, the definition of a press publication (Article 2(4)) is broad enough to include academic publications, although these are explicitly excluded by Recital 33. The same thought is seen to apply to websites. Those are mentioned in Recital 33, but not in Article 2(4) lit. b). Further criticism relates to the reference to the already highly debated right of making available to the public provided in the InfoSoc Directive 2001/29/EC, and the legal vagueness of terms like “insubstantial parts” or “no independent economic significance” in Recital 34a (do snippets have an independent economic significance?). He finally questioned the real purpose of the provision, and argued that this should be clarified for the Parliament to be able to make a decision in full knowledge.

Value gap

During the second panel, Martin Senftleben and Graeme Dinwoodie discussed the controversial Article 13 of the Draft. Under the new provision, online content sharing service providers shall either get an authorisation for the content uploaded by its users, or filter it.

• Licensing could be achieved through umbrella agreements obtained from collecting societies. However, it will be nearly impossible for platform operators to get cross-border licenses for the entire EU territory.
• Filtering should be effective and proportionate. However, the decision will be left to the industry, and this could be at the expense of the public interest. The complaint and redress mechanism represents a long and uncertain path for platform users, so the industry will be the decision-maker in the matter, unless Member States “endeavour to establish mechanisms to facilitate the assessment of the effectiveness and proportionality of these measures“.

Moreover, the relationship between the new Article 13 and the well-established Safe Harbour mechanism as set out in the eCommerce Directive was debated. Particular emphasis was placed on the need for a clear definition of what shall be determined as an act of communication to the public. Also, the risk of incidental blocking of legitimate content (over-blocking) was stressed. From the discussion it became clear that the current language as proposed on 17 May 2018 cannot be the final word here.

Political breakthrough

Coincidentally, the COREPER had planned a meeting on the very same day that the conference took place, to discuss the Council’s Presidency compromise proposal. During the day, it became known that the COREPER had been successful in agreeing on a general approach, i.e. a compromise as regards the Council’s position in this copyright reform (read the official press release here). It is now to be seen whether the JURI Committee will also be able to agree on a final wording during its next session on 20/21 June 2018. Only after that may the trilogue commence.

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