While the European Parliament is in the middle of its discussions about the European Commission’s proposal for a Directive on Copyright in the Digital Single Market, similar discussions are taking place in a number of Member State parliaments. The results of these conversations will influence the position that Member States take in the discussions in the Council.

A particularly interesting discussion has been unfolding over the past month in the Romanian Parliament, where on the 15th of March the IT&C Committee of the Chamber of Deputies organized a debate on the proposed directive, in order to collect the views of different stakeholders. After the event, the IT&C Committee produced an opinion addressed to the European Affairs Committee of the Chamber of Deputies, which is the group responsible for drafting the final report of the Parliament on the package proposal. The members of the IT&C Committee unanimously voted against the European Commission’s proposal and advised to withdraw it in its entirety.

While this is not a heavyweight vote and as such not likely to be taken over as the Romanian Government’s position, it represents the first entirely negative advice issued by national policy makers in a Member State. It is therefore interesting to take a closer look at the arguments for rejection.

1. Fundamental problems in impact assessment and public consultations

The IT&C Committee’s report noted the insufficient impact assessment studies, which in their view do not provide adequate data for consolidating the European Commission’s proposal. It is also mentioned that although there have been public consultations, the results of these consultations was not taken into account for finalizing the proposal, and the text does not correspond with the users’ point of view.

2. Limitations on freedom of expression and privatization of monitoring copyright enforcement

The report criticizes Article 13 of the copyright proposal, highlighting the contradiction with EU law, namely the E-commerce directive. Additionally, the document reinforces the fact that content filtering techniques were declared by the European Court of Justice (decision C-360/10) to be in violation of the Charter of Fundamental Rights of the European Union.

At the same time, the report notes the high costs of implementing filtering techniques, and draws attention to the fact that it will severely affect digital start-ups. What’s more important, it states that filtering measures will not be able to recognize legal use of copyrighted works, which will lead to censoring of content such as parodies and other activities permitted under exceptions to copyright.

3. The limited definition of the exceptions to copyright protection and limitations to innovation and market competition

The report states that the exception for using copyright protected works for educational purposes and the exception for text and data mining are too narrowly described in the copyright proposal. The education exception would only cover formal education establishments, and the text and data mining exception would only benefit non-profit research organizations. At the same time, the report notes that libraries are not considered as beneficiaries of these exceptions, even though it’s commonly known that there are libraries with research status.

4. Ancillary copyright

The IT&C Committee’s opinion on introducing new rights for publishers is that it might lead to legal uncertainty, and would impose additional costs for using excerpts or distributing links to digital content of press publications.

All the arguments presented during the public debate were incorporated into the IT&C Committee’s report. After the analysis, the unanimous conclusion of the report is that the copyright reform proposal will do more harm than good and will threaten the horizontal approach to online content liability by creating a special regime for copyright. It states that the copyright proposal also will limit user rights to use protected works for legally recognized purposes such as education, citation, or parody.

The report argues that there is a sound basis for rejecting the copyright proposal as a whole if decision makers can leave aside political compromise and decide in the name and interests of all stakeholders, especially users.

In the meantime, the Chamber of Deputies of the Romanian Parliament adopted its report on the copyright reform maintaining most of the IT&C Committee’s recommendations. However, it should be noted that their report does not include any reference to Article 11 (the provision on ancillary copyright). Full details on the Parliamentary Committee’s reports can be accessed here (in Romanian).

This guest post was written by Valentina Pavel, ApTI Romania. ApTI was also among the participants who expressed a firm position against the provisions of the proposal. The summary of ApTI’s intervention is available here (in Romanian).