European Policy for Intellectual Property (EPIP) is the leading scientific association for the economics and law of Intellectual Property. The EPIP 2018 conference was held in Berlin, 4-7 September 2018, where this statement was drafted.

On Wednesday, 12 September 2018, the European Parliament will vote in plenary session on the heavily lobbied proposed Directive on Copyright in the Digital Single Market.

On 5 July, a previous plenary vote rejected the report by Axel Voss MEP, the rapporteur for the legal affairs committee JURI. The main concerns related to the effects of Article 11 that introduces a new layer of licensing into the communication of news online, and of Article 13 that introduces new obligations on online platforms that are likely to be met by filtering content uploaded to their services.

Download statement here or read more below.

Rapporteur Voss has now introduced changes to his earlier text that address some of these concerns. In particular, he has removed any references to filtering technologies that became the rallying cry of opponents of Art. 13 (#saveyourinternet). In addition, he has tried to narrow his new category of ‘online content sharing service provider’ (who no longer benefit from the safe harbour of the e-commerce directive). Not included now are microenterprises and small-sized enterprises (read: some start-ups), non profit encyclopaedias (read: Wikipedia), some educational or scientific repositories, cloud services for individual use which do not provide direct access to the public (read: Dropbox), open source software developing platforms (read: GitHub), and online market places (read: eBay).

The aim is to single out services such as YouTube as a distributor of audiovisual content who would have to obtain an ordinary copyright licence for some of their activities, if the Directive was adopted.

While we agree with the aim to make services pay that directly and unfairly compete with licensed content, there remain considerable dangers in Mr Voss’ approach.

Removing the references to filters while requiring cooperation from service providers so that infringing works uploaded by users “are not available on their services” may amount to a filtering requirement, with fundamental rights implications. The potential negative effects for new entrants, and the inconsistency with the language of the e-commerce directive also remain.

Regarding Art. 11, Mr Voss employed a similar strategy. Rather than removing the problem (requiring an additional layer of licensing where copyright already exists), he introduces reassurances. According to his draft, some bloggers (who fall within “legitimate private and non-commercial use of press publications”) do not have to pay. And hyperlinking will remain permitted, disregarding that “hyperlinks accompanied by individual words” only perform their function if the reader knows where they lead to. Short contextual paragraphs, not individual words are the necessary element in the ecosystem of news.

We also would like to note that the Directive offers important opportunities to improve European competitiveness by introducing an exception for text and data mining in Art. 3 (facilitating for example artificial intelligence technology). Mr Voss’ report is an improvement on the Commission’s proposal but still limits Art. 3 unnecessarily to research organisations “for the purposes of scientific research by such organisations”.

The proposal also misses the opportunity to strengthen the position of creators sustainably, and thereby to bring more balance to European copyright law. Proposals to include exceptions for enabling re(-uses) of protected works that most digital consumers have long taken for granted are (still) absent from the proposed text. We support proposed exceptions for using pictures of publicly displayed artworks or works of architecture (so-called ”freedom of panorama”) and for creative and expressive uses (e.g. “memes”) under an exception for user-generated content. Both of these are not present in Mr Voss’ text.

Voting recommendation

We recommend –

that the text and data mining exception under Article 3 should apply to all lawful users (Schaake, in line with ITRE committee opinion and Commission Impact assessment option 4);

that new consumer facing exceptions for Freedom of Panorama and User-generated content are introduced (Article 5a and 5b, Schaake and Greens);

that Article 11 is deleted – and if there is no majority for deletion, the Comodini presumption be adopted (amendments by Schaake and Greens);

that Article 13 is amended to the text proposed by the IMCO Committee (preserving the integrity of the e-commerce directive) – and if there is no majority for the IMCO position, amendments by Schaake or Woelken be adopted.

A new Article 12a protecting sport event organizers was introduced at a late stage. This is completely unacceptable without conducting an Impact assessment. We recommend deletion.

The arguments and evidence offered by academics from the leading European research centres over the last two years have remained consistent. Copyright policy is a complex field of regulation. It is misleading to present the debate as a war between US technology giants and European creators. European culture, society, and economy will be best served by an evidence-led approach.

Academics endorsing this statement:

Dr. Christina Angelopoulos, Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge

Professor Tanya Aplin, Dickson Poon School of Law, King’s College London

Professor Lionel Bently, Director, Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge

Robert Burrell, Professor of Law, University of Sheffield and Melbourne Law School

Dr Elena Cooper, Leverhulme Research Fellow, UK Copyright & Creative Economy Centre (CREATe), University of Glasgow

Professor Peter Drahos, Professor of Law and Governance, European University Institute, Florence

Professor Mireille van Eechoud, Institute for Information Law (IViR), University of Amsterdam

Professor Niva Elkin-Koren, Director, Haifa Center for Law & Technology (HCLT), University of Haifa and Faculty Associate, Berkman Klein Center for Internet & Society, Harvard University

Assoc. Prof. Kris Erickson, Dept. of Media and Communications, University of Leeds & CREATe Fellow

Dr. Stef van Gompel; Institute for Information Law (IViR), University of Amsterdam

Professor Jonathan Griffiths, Professor of Intellectual Property Law, Queen Mary, University of London

Dr. Henning Grosse Ruse-Khan, Reader in International and European Intellectual Property Law, Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge

Professor Dietmar Harhoff, Director Innovation and Entrepreneurship Research, Max Planck Institute for Innovation and Competition, München

Professor Reto Hilty, Director, Max Planck Institute for Innovation and Competition, Max Planck Institute for Innovation and Competition, München

Professor P. Bernt Hugenholtz, Professor of IP Law, Institute for Information Law (IViR), University of Amsterdam

Dr. Martin Husovec, Tilburg Institute for Law, Technology and Society (TILT) & Tilburg Law and Economics Center (TILEC), Tilburg University

Dr. Bernd Justin Jütte, Asst. Professor, School of Law, University of Nottingham

Professor Martin Kretschmer, Director, UK Copyright & Creative Economy Centre (CREATe), University of Glasgow; 2018 Braudel Fellow, European University Institute, Florence

Dr. Thomas Margoni, UK Copyright & Creative Economy Centre (CREATe), University of Glasgow

Dr. Maria Lillà Montagnani, Associate Professor of Commercial Law, Bocconi University of Milan

Dr. Valentina Moscon, Senior Research Fellow, Max Planck Institute for Innovation and Competition, München

Assoc. Professor (economics) Joost Poort, Institute for Information Law (IViR), University of Amsterdam

Dr. João Pedro Quintais, Institute for Information Law (IViR), University of Amsterdam

Professor Marco Ricolfi, Department of Law, Torino University and Co-Director NEXA, Politechnico di Torino

Professor Martin Senftleben, Professor of Intellectual Property, Centre for Law and Internet (CLI), Vrije Universiteit Amsterdam

Assoc. Professor Caterina Sganga, Scuola Superiore Sant’Anna, Pisa and Central European University, Budapest

Professor Ruth Towse, Professor of the Economics of Creative Industries, Bournemouth University & CREATe Fellow in Cultural Economics

Professor Raquel Xalabarder, Chair of Intellectual Property, Universitat Oberta de Catalunya (UOC), Barcelona