We have reported a couple of times on the efforts by the European Union to modernize EU copyright law and make it fit for the digital age. Now, it is almost one and half years ago that the Commission presented its first draft for a copyright directive. Since its publication there has been a great debate about the direction of the reform. This is not surprising given the explosiveness and the substantial range of the topic. Copyright affects everyone – starting from the authors (artists, performers, photographers etc.), to publishers as well as production and media companies through to online platforms and search engines and last but not least the “normal” internet user. The EU’s aim to create a fair digital market place for copyright protected works can therefore be considered as highly challenging. A very important step towards the realisation of the goal is expected to be made soon: it’s estimated that the Committee on Legal Affairs (JURI) for the European Parliament will debate and vote on the Parliament’s final position on 27 March 2018.
Where We Come From
On 14 September 2016, the European Commission presented the long awaited initial draft for a new directive on copyright in the Digital Single Market (COM(2016)593). The draft was published in the context of the large scaled Strategy for a Digital Single Market (for more information gathered by our DSM Watch team, click here).
Since the publication, there have been many different voices, some welcoming and some opposing the Commission´s proposal. The initial draft covers provisions to introduce new copyright exceptions (e.g. for the limited use of works for text and data mining), rules on out-of-commerce works and the fair remuneration of authors and performers. The ‘big issue’ items, however, are the introduction of a neighbouring right for press publishers (Article 11) and new monitoring obligations for online service provider (Article 13). Furthermore, the participation of publishers in the revenue generated by collective rights management and a negotiation mechanism in the area of audiovisual media are discussed controversially.
Upcoming Vote by JURI & the Parliament
According to the European legislative procedure, the Parliament and the Council have to present their own position based upon the initial draft by the Commission and finally create a compromise between the three institutions. In light of the time passed since the publication of the initial draft, it is not hard to guess that the parliamentarians have difficulties in agreeing on one position. For some time, JURI, the Committee responsible, only reached an agreement for a small number of provisions. The final vote has been postponed twice due to great disagreements on how to amend the Commission´s provisions (see our blog post). Now, the breakthrough is on its way: According to a recently published timetable, the JURI for the European Parliament is supposed to finally vote on the report by the rapporteur on the Commission´s draft directive on 27 March 2018. The final report by JURI will serve as the basis for the plenary readings in the Parliament and is therefore highly significant.
Position of the Council
An internal document by the Presidency of the European Council, dated 16 January 2018, reveals that the Presidency has already reached an agreement on most of the provisions – except for Articles 11 and 13 – the press publishers neighbouring right and the obligations for service provider. With regard to those two issues, the Presidency seeks political guidance from the Permanent Representatives Committee in form of specific questions:
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The introduction of a neighbouring right for press publishers itself is apparently not up for debate, but instead the specific implementation. The Presidency hereby relies on two options presented in an earlier paper, dated 30 August 2017. For instance, guidance is sought on whether only the use for a commercial purpose should be covered by the neighbouring right and on whether the suggested term of 20 years of protection should be shortened in light of the economic cycle of exploitation.
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Additionally, the Presidency has several questions regarding Article 13 and the so-called value gap. Amongst others, the Presidency would like to know whether there should be clarification relating to the question of when the action of service provider constitutes a “communication to a public” and how the proposed Article 13 will interact with the limited liability regime under Article 14 of the E-Commerce Directive (2000/31/EC).
The issues that are raised by the Presidency exemplary show the difficulties in reaching an agreement on the two important aspects of the upcoming copyright directive. The final vote by JURI on 27 March 2018 will likely be the next huge step towards a final version of the copyright directive.
We´ll keep you posted!
