In the never-ending dossier on copyright reform, the latest development makes one wonder if we finally reached the fourth dimension. Following two weeks of silence and closed door negotiations between France and Germany, the Romanian Presidency came out with its new proposal for a negotiation mandate to be voted on this Friday, 8 February 2019, at the Council’s COREPER I meeting, which brings together the Deputy Permanent Representatives to the EU of the Member States (= the deputy Ambassadors), as point 27 on the agenda (close your eyes: it’s Friday after 6 pm and when everyone is already half headed home for the weekend, they get to hit the golden buzzer for the copyright Directive to go to the final trilogue).

Now that we have the setting of this tragedy, let’s explore its plot, as that’s where that fourth dimension element kicks in.

Part 1 of the plot: The Germans cave-in

First, there is the fact that a German-French negotiation started under the pretence of Germany wanting to protect small enterprises from the burden of Article 13 – aka the upload filter, aka the #CensorshipMachine, aka welcome to the licensing utopia – by creating a carve out for them, a sentiment apparently shared by the European Parliament when they adopted their own negotiation mandate at the September 2018 plenary. ‘Protecting SMEs is a red line’, German diplomats were quoted as saying (albeit without specific reference to their name). But journalists forgot to ask them the shape and nature of that line, as the compromise reached with the French clearly show the line was dotted, curved, and easily erased.

The end res ult as proposed by the Romanians is an unrealistic mess at a variety of levels in terms of what it entails:

an SME carve-out that is not a true carve-out: The text put forward maintains the notion that licensing is the magical solution, and that everyone, be it small or large companies, is in a position to obtain licenses. This raises issues at multiple levels: (1) there are no licensing mechanisms for all the content that would fall under the scope of Article 13, and (2) for those types of content that can be licensed, this approach risks favouring an exclusive dialogue between the big (US) platforms and big (US) rightholders, excluding the smaller platforms and creators. This would severely jeopardise the EU’s cultural diversity and economic potential for both the entrepreneurial and creative sector.

The text put forward maintains the notion that licensing is the magical solution, and that everyone, be it small or large companies, is in a position to obtain licenses. This raises issues at multiple levels: (1) there are no licensing mechanisms for all the content that would fall under the scope of Article 13, and (2) for those types of content that can be licensed, this approach risks favouring an exclusive dialogue between the big (US) platforms and big (US) rightholders, excluding the smaller platforms and creators. This would severely jeopardise the EU’s cultural diversity and economic potential for both the entrepreneurial and creative sector. a solution that will discourage EU startups, and kill EU scaleups: The EU desperately wants to foster an EU startup economy, but is simultaneously creating a regulatory environment that is discouraging these companies to come to existence in the first place. Moreover, the text put forward is killing any potential ambition for startups to scaleup, as the supposed SME-carve-out – which is not a true carve-out (see point 1) – sends a signal that the EU prefers to have small, unsuccessful companies that do not innovate or support the EU job and growth creation, whilst creating an environment that enables the existing (US) giants to thrive at their and our expense. Check out Techdirt’s specific analysis here. Finally, remember that any ambitious startup that could benefit from the criteria put forward today for the partial carve-out will lose that benefit by the time this legislation is transposed, if one considers an average of 2 years for implementation.

The EU desperately wants to foster an EU startup economy, but is simultaneously creating a regulatory environment that is discouraging these companies to come to existence in the first place. Moreover, the text put forward is killing any potential ambition for startups to scaleup, as the supposed SME-carve-out – which is not a true carve-out (see point 1) – sends a signal that the EU prefers to have small, unsuccessful companies that do not innovate or support the EU job and growth creation, whilst creating an environment that enables the existing (US) giants to thrive at their and our expense. Check out Techdirt’s specific analysis here. a UGC exception that does not even cover ‘memes’: The deletion of reference to the ‘illustration’ exception renders the proposed user-generated content (UGC) exception useless to protect harmless everyday practices by users, such as ‘memes’, as these would not necessarily fall under the other limited set of exceptions that are covered, such as parody (often defined in a limited manner) or quotation (which does not cover audiovisual material in many Member States).

The deletion of reference to the ‘illustration’ exception renders the proposed user-generated content (UGC) exception useless to protect harmless everyday practices by users, such as ‘memes’, as these would not necessarily fall under the other limited set of exceptions that are covered, such as parody (often defined in a limited manner) or quotation (which does not cover audiovisual material in many Member States). an obligation to prevent the availability of unauthorised content and to ensure that this content stays-down: These obligations can only be practically fulfilled by platforms through the adoption of automated filtering technologies. Although avoiding explicitly mandating these systems, the requirements laid upon platforms leave them no other choice than to implement, or even create, such filters. Moreover, a stay-down obligation would equate to a general monitoring obligation, which would be contrary to Article 15 of the e-Commerce Directive, since a platform can only prevent re-uploads of any works by filtering all works.

So that’s on the Council side. Add to that the bizarre statements of Rapporteur Axel Voss of the European Parliament yesterday, 5 February 2019, that “What France and Germany have agreed is a new safe harbour for small platforms, able to exist beyond what we already have today. It’s something we can’t accept,” and just reach the conclusion we did: all German elements involved in this dossier just buried any hope for SMEs to ever survive this provision, and for anyone but the rightholders’ interests to be defended.

Part 2 of the plot: The Italians Step Up

In parallel to these shady backdoor negotiations (and one cannot help wonder what the Germans received from the French in exchange for their submission), Italy yesterday once more stepped forward, not just to denounce the failures of Articles 11 and 13, but to actually outline what is needed to make them realistic, workable and beneficial to creators without wrecking the entire Internet.

In a statement made on 6 February, Luigi Di Maio, the Italian Deputy Prime Minister and Minister of Economic Development, talks about such ‘crazy’ concepts as protecting the rights of web users and avoiding filters, direct or indirect, as an outcome of Article 13.

Let’s now hope that contrary to Shakespearian tragedy plots, this one does not end with an element of tragic waste or an absence of poetic justice, as EU citizens and creators deserve a better deal when it comes to copyright.