This Thursday, October 25, the second trilogue negotiation on the EU copyright reform takes place, in which the European Parliament and the Council (representing the member state governments) try to reach a compromise between their positions. You can find the trilogue’s draft agenda and the new compromise proposals here.

Where EU member states stand

Ahead of this, the member state governments have been debating their stance. Here’s where the different countries currently stand on the main controversial articles – the “link tax” and upload filter proposals:

Country “Link tax” Upload filters Austria in favour in favour Belgium sceptical sceptical Bulgaria Croatia limit it Cyprus expand it Czechia opposed limit it Denmark limit it Estonia Finland opposed France expand it expand it Germany limit it sceptical Greece expand it in favour Hungary in favour in favour Ireland limit it in favour Country “Link tax” Upload filters Italy opposed opposed Latvia limit it Lithuania limit it Luxembourg sceptical limit it Malta limit it Netherlands opposed sceptical Poland Portugal in favour in favour Romania Slovakia sceptical limit it Slovenia opposed Spain expand it expand it Sweden sceptical limit it UK in favour limit it Key: opposed Wants deletion sceptical Does not find any of the current options acceptable limit it Supports a limited version, e.g. with narrower scope or more safeguards in favour Supports the proposal expand it Supports an expanded version, e.g. with broader scope or fewer safeguards

Is there a majority?

To pass the Council, a law needs the support of at least 55% of member states, who together need to represent at least 65% of the EU population.

If only the countries marked above as opposing an article vote against the law, it is passed.

Germany, Belgium, the Netherlands, Finland and Slovenia voted against the proposal last time – if this opposition stands and Italy joins (which changed its stance under its new government), the proposal would narrowly be rejected, falling just shy of the 65% threshold (see a calculator here). The most influential and least sure vote is Germany’s.

Surprise attack on education

Unfortunately, a new problem has arisen in the negotiations on the copyright exceptions: Council is threatening existing copyright exceptions for research and education. Today, all Member States of the EU allow the use of copyright protected works for research and education to some extent. Generally, these exceptions for teaching purposes do not require any technical measures to ensure that only students can access the content. Several Member States certainly allow the use of the education exception online.

Parliament is of the opinion that the new mandatory exception for teaching is supposed to provide a common standard for all of the EU to allow cross-border teaching activities, because the existing education exceptions are always bound to the territory of one country. By no means is the new mandatory teaching exception supposed to limit what is allowed under the existing optional exception for research and education.

Council, on the other hand, has now completely out of the blue proposed a new Article 17a that says that existing exceptions for education, text and data mining or preservation can only be maintained if they don’t contradict the rules of the newly introduced mandatory exceptions. In the case of teaching, this would mean that national teaching exceptions that don’t require limiting access to the educational material by using a “secure electronic environment” would no longer apply!

This is outrageous given that the whole stated purpose of the new mandatory exceptions was to make research and education easier, not to erect new barriers. If as a consequence of the new mandatory teaching exception, teaching activities in some countries that have been legal all along would no longer be legal, then the reform would have spectacularly failed at even its most modest goal of facilitating research and education. It’s therefore of utmost importance that Parliament must insist that any copyright exception that is legal under existing EU copyright law remains legal if this new Directive is passed.

Other issues

Good news: The sports event organisers’ right appears dead in the water, with not a single member state having come out in clear support of the Parliament’s idea.

On the under-reported issue of Text and Data Mining, there’s a chance for improvement: Belgium, Finland, Germany, the Netherlands, Italy, Estonia and the Czech Republic support expanding the scope of this proposed copyright exception that would be critically important for Europe’s AI industry.

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