On 11 July, the Culture and Education (CULT) and Industry, Research and Energy (ITRE) Committees voted on Copyright in the Digital Single Market [2016/0280(COD)].In early June, the Internal Market and Consumer Protection (IMCO) Committee was the first to deliver its Opinion. It did not fully deliver on the expectations we had. The bad news was that IMCO Committee failed to rebut the press publishers’ right (Article 11), the good news was that it stood up for consumers on the upload (a.k.a. censorship) filter (Article 13) (our full analysis can be found here).

The votes this week however did not even attempt to reflect any balance between the interests at stake and basically went full nuclear in favour of the rightholders (That’s not me saying that: it’s GESAC, the Authors’ Societies lobby, stating the obvious in their press release after the vote). The ITRE adopted opinion can be found here. [Update on 25/08: the CULT Opinion is now also available here].

So what’s the list of casualties after these two votes?

1st Victim: Sharing of Information & Research

The Press Publishers Rights went from ‘The German model on steroids’ initially proposed by the European Commission to ‘Thou shall not share information even in print, including for research’ (Article 11)

Remember how bad we thought the European Commission’s press publishers’ right in Article 11 was? How we pointed out repeatedly to those quoting the failure of the German and Spanish experiments that this new right was much broader and damaging?

Well, guess what: if the ITRE & CULT Committees were to get their way, it would be hundred times worse (this is not a scientifically calculated number but hey, evidence-based policy making went out the window a long time ago in Brussels):

The press publishers’ right went from applying to ‘digital’ uses of press to all uses, including print. Aside from the fact that this seems a violation of Article 10(1) of the Bern Convention (which establishes a mandatory exception for ‘press summaries’), the impact of such a massive extension is unfathomable.

uses, including print. Aside from the fact that this seems a violation of Article 10(1) of the Bern Convention (which establishes a mandatory exception for ‘press summaries’), the impact of such a massive extension is unfathomable. The definition of press publications has become so broad that infringements to article 11 are impossible to predict and hence prevent. The ‘exceptions’ to the applications of this new right just add to the potential legal uncertainty, as the CULT text states ‘ The [publisher] rights granted under this Directive should be without prejudice to the authors’ rights and should not apply to the legitimate uses of press publications by individual users acting in a private and non-commercial capacity . The protection granted to press publications under this Directive should apply to content automatically generated by an act of hyperlinking related to a press publication without prejudice to the legitimate use of quotations.’ This paragraph alone opens such a Pandora Box of unanswered questions, such as: What is a legitimate use of press publications? And who’s the judge of the legitimacy? When are you acting in your private and non-commercial capacity? Content automatically generated by an act of hyperlinking related to a press publication: so that mean that when you share a link on social media and that triggers automatically the appearance of a snippet, you are now officially in trouble? When are you ‘legitimately’ quoting? Is that a new criteria imposed on top of the only mandatory exception globally? And if so, who judges if you comply?

And if this wasn’t bad enough, the ITRE Committee completely wrecked the entire scientific research landscape by changing one small word in Recital 33, making the press publishers rights also applicable to scientific publications, where the original text excluded them. Coming from a committee that claims to be an ardent proponent of open access, that certainly raises a question on where common sense was at yesterday?

Depressed yet? Well, there are some small light points in this gloomy text (though finding them requires a seriously positive state of mind and a willingness to equate less bad with good):

There seems to be some willingness to avoid creating a fully-fledged link tax in several amendments that were adopted, even though the impact of such provisions is unlikely to be relevant in real life as they limit their scope to ‘non-commercial’ uses, a threshold which is passed in most countries when a user posts something on a social media platform or any site that carries advertising.

Journalists have been brought into the picture with Member States being required to ‘ensure a fair share of the revenue derived from the press publishers rights is attributed’ to them.

The press publishers right duration has been brought back from the absurd 20 years proposed by the European Commission to a slightly less absurd 8 years. OK, not really good but a decent recognition that this whole discussion is not based on any evidence of harm and is purely political.

2nd Victim: Users Freedoms & the Internet

Online censorship becomes more muddled and all encompassing from one draft to another (Article 13)

The European Commission proposal for Article 13 was already a perfect recipe for fundamental freedoms disaster and the measures adopted in ITRE and CULT just added a layer of misery on top.

Whilst the ITRE amendments mostly tried to remove some of the worst language included in the original text but without removing the fundamental flaws in it, CULT decided to go full monty in displaying its dislike of the Internet by adopting a text that is probably illegal under EU law:

The scope of the censorship filter is extended to ‘Information society service providers that store and/or provide to the public access to copyright-protected works or other subject-matter uploaded by their users’, so basically the whole cloud falls under this filter, as pointed out previously by EDRi:

‘Under the CULT “compromise amendments”, it would no longer be possible to store legally acquired music recordings video files or any other copyrighted content on European cloud storage services. This is despite the fact that Europeans already pay hundreds of millions every year in levies (3,2 billion euro in the first half of this decade) to compensate rightsholders for making copies of legally obtained copyrighted works.’

Image referencing by search engines has been included in the picture: ‘Member States shall provide that information society service providers that automatically reproduce or refer to significant amounts of copyright-protected visual works and make them available to the public for the purpose of indexing and referencing shall conclude fair and balanced licensing agreements with any requesting rightholders in order to ensure their fair remuneration’. So far, such a provision has only been adopted in France and it is too soon to asses what its impact will be, but it’s likely to be in the category ‘bad, bad and worser’.

The CULT Committee tries to gives itself a good conscience by stating that ‘Measures to prevent the unauthorised making available of copyright-protected works or other subject-matter shall be limited to specifically identified and duly notified works and shall not consist in active monitoring of all data of each user of the service’, which is an absurd statement aimed at pretending this filter does not violate the prohibition of general monitoring established under the Charter of Fundamental Rights, the Ecommerce Directive and confirmed by the CJEU. The reality is that: to spot infringing content (even if it’s only 1 song) and prevent it being available, you have to monitor everything every user uploads. So stop the semantics: it’s a general monitoring obligation.

From its initial idea of promoting a mandatory user-generated content (UGC) exception, CULT stepped down to a voluntary one that is completely rendered meaningless by the fact that such UGC would be caught into the required automated censorship filters of online platforms. I guess one could consider this an illustration of policy making sarcasm?

If this provision were to be adopted by the lead JURI Committee after summer break, every cloud drive you use will thus be required to set in place a censorship filter capable of identifying all copyrighted content and make licensing deals with rightholders. Considering the cost of doing this for audio alone, the impact of this provision is just amazing from a business perspective. And for you, as a user? Well I hope you were not too attached to your fundamental freedoms to start with.

3rd Victim: Entrepreneurship in the European Union

Don’t dare to grow if you want to do text and data mining as a start-up! (Article 3)

‘Small is beautiful’ is more and more the key motto to live by as a start-up in the EU. European policymakers have a tendency, when realising measures they take are likely to affect entrepreneurship in the EU, to make carve outs for start-ups. The ITRE Committee for example has in its extreme generosity decided to leave the benefit of the Text and Data Mining exception limited to research organisations and ‘start-up companies’, defined as ‘any company with fewer than 10 employees and an annual turnover or balance sheet below €2 million and which was established not earlier than three years before benefiting from the exception’. The message for European start-ups is clear: don’t dare scale up your first three years of business if you want to mine content and if you do, move away from the EU (and move anyway after 3 years)! Never mind jobs and growth, the EU mantra we keep on hearing. Oh, and please do not be innovative any longer once you are an established player: we would not want our economy to be competitive on the international scene.

Conclusion: It’s time to fight back

Rarely have the European policy makers made such an effort to antagonize and cripple so many stakeholders in one single dossier, to the benefit of a small minority of interests, dubbed ‘the creative industry’.

The fight is not finished: actually, it’s only beginning. And there’s work to do after this summer break, so be prepared to raise your voice!

Next in line to vote on its Opinion is the Civil Liberties, Justice and Home Affairs (LIBE) Committee (25 September), see our analysis on its draft opinion. The vote in the lead Legal Affairs (JURI) Committee has been delayed until 10 October, following a change in the lead Rapporteur, as Ms Therese Comodini Cachia traded the EP for the Maltese Parliament and German EPP MEP Axel Voss took over the file. Since doing this, he has clearly stated in interviews behind paywalls that (1) he will wipe out all the work done by his predecessor on this dossier and (2) that all the EPP MEPs will be curbed into submission now that he was able to steam roll through an EPP Group position (shared on Twitter by MEP Julia Reda).

Maybe he just believes in the fulfillment of the saying ‘and at the end, the Germans win’…but that only works for football (and one hopes that will change too…Go Belgian Red Devils!). When it comes to our personal fundamental freedoms and the potential for our businesses to thrive in the EU, we’d rather go for ‘and at the end, common sense wins’. There’s work to do.

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