Compromise agreement reached on Copyright Reform legislation, providing safeguards for Open Science

This week the EU agreed on a compromise draft for the Directive on Copyright in the Digital Single Market. This bears evidence that much of what we were fighting for – in the way of Open Science – has been achieved. This is a definite win, as earlier proposed legislation could have been of great concern for researchers across Europe. However, it is worth noting that our efforts were aimed at improving a piece of legislation that we view largely as unfavourable to research and society.

What do Articles 11 and 13 imply for Open Science?

The two highly contentious articles – 11 and 13 – still present hurdles for education and research, and these provisions will impact freedom of expression and access to information. However, they both now recognise the important position that Open Access and Open Science occupy in Europe’s research community. This is thanks to efforts led by SPARC Europe together with a team of international organisations including COAR, EIFL, EBLIDA, EUA, IFLA and LIBER at the European Parliament and European Council over the last 18 months. The coalition’s prime focus: ensuring open access to research publications is recognised under Articles 11 and 13.

To summarise, Article 11 (the so-called ‘link tax’) introduces a new ancillary right for news publishers whose publications will be protected when shared online, save for “very short extracts.” The term “very short” will likely be subject to varying interpretation, and therefore, it remains to be seen how this will affect the free flow of information. Newspapers and other press publications are an essential resource for education and research — and access to this information is now compromised. However, and this is key, the recently agreed draft directive, in Article 2(4),states that “periodicals which are published for scientific or academic purposes, such as scientific journals, shall not be considered as press publications for the purposes of this Directive” and therefore shall be exempt from the scope of Article 11. This is a victory for the research community, which will be able to continue to freely share and access research articles.

As to Article 13 (also dubbed “upload filters”), the provision focuses on large, for-profit online content sharing service providers and creates a new liability regime for platforms where content is uploaded by its users. This obliges online content sharing service providers to put up upload filters and monitoring mechanisms to check for potential copyright infringement. It puts strict controls on what we upload and prevents us from fully utilising the many technologies or platforms that have given us the Internet as we know it and will impinge on how knowledge is created and shared. SPARC Europe is, however, pleased that – at our request – “not-for profit educational and scientific repositories” are explicitly excluded from this article thereby safeguarding repositories from this new burdensome regulation. This means that the current notice-and-take-down regime will continue to apply for these repositories; we have been fighting for this over the past 18 months.

For a more detailed summary of the compromise text, see Julia Reda’s post.

What’s next?

As at 26 Feb 2019, in terms of what’s next in the process for the Directive; the text will now be voted by Parliament after just having been approved by the European Parliament’s Legal Affairs Committee (JURI Committee) and the European Council. The Directive will now advance to the plenary of the European Parliament for a vote – which will most likely happen in March or April. If passed, the Directive would immediately become effective. Important to note: the Plenary could still decide to cancel or introduce changes to the draft Directive.