On 12 September 2018, the EU Parliament has passed its negotiating position on the proposal for a New Copyright Directive. The new text follows the demise of the initial one in July, and means the trialogue negotiations between Parliament, Council, and Commission can now begin. The amendments are unlikely to address the concerns voiced by activists and political parties. Some provisions, such as those on remuneration of news providers, will continue to divide industry until they are put in practice and, if necessary, reviewed.
The Parliament has changed its text after the negative vote in July
The vote of 12 September 2018 ensures that the EU Parliament now has a negotiating position for the trialogue discussions between Commission, Parliament, and Council on the Copyright Directive. Earlier this year, on 5 July, the Parliament had voted against the initial text of the Legal Affairs Committee, which had sparked controversy among different stakeholders and political parties.
The main concerns around the Committee’s text related to the risk to freedom of expression posed by some provisions; these have now been amended to make sure that activities such as the mere sharing of hyperlinks, together with individual words to describe them, remain free from copyright constraints; and that any system to take down infringing content also includes a rapid redress system, operated by human staff and not by algorithms. The amendments also strengthen the requirements placed on online platforms, and news aggregators such as Google News, to pay content producers (e.g. journalists and artists) and to make online platforms liable for copyright infringements. The new text makes sure that journalist themselves, and not just publishing firms, benefit from remuneration stemming from these requirements. At the same time, the text now exempts small platforms, so that startups do not face excessive regulatory burdens, and clarifies that non-commercial platforms like Wikipedia are exempt from the provisions.
The new text has done little to dissipate criticism, although the most serious concerns could be unfounded
The demise of the previous text in July came after mounting pressure from many sides. Online activists warned of the consequences of restrictive provisions, which could result in threats to freedom of expression. One of the most common argument has been that a restrictive approach to copyright could mean the end of internet memes, which have gained staggering popularity in recent years. However, such concern could in practice be unfounded, as media industries will have no interest in engaging in legal action with fans, and will more likely aim to obtain remuneration from platforms rather than seek outright takedown.
The latest version of the Parliament’s negotiating position has done little to silence concerns however. MEPs opposed to the reform have described the changes as ‘cosmetic’ and continue to see the proposal as a “severe blow to the free and open internet”, as it requires platforms to install ‘error-prone’ upload filters.
Remuneration of news providers will continue to divide industry for the years to come
One of the most controversial aspects of the proposal since its inception relates to the remuneration that platforms will have to provide to publishing houses. In other words, services such as Google News or similar will have to compensate publishing companies.
For a long time, this has been the cause of a lively dispute between platforms and news providers, as the two sides debated on which of them had to pay the other. In previous years, news services sought to obtain compensation from news aggregators; this led Google to shut down its News service in Spain, where ancillary rights laws were passed to grant such compensation. The issue ended up dividing the press publishers industry itself: in the consultation carried out by the EC during 2016 on the role of publishers in the copyright value chain, most press publishers were in favour of a neighbouring right which, they argued, would strengthen their bargaining power and foster legal certainty. However, news publishers from Germany and Spain, where similar laws had already been introduced, noted that the introduction of a neighbouring right at EU level would make it harder for service providers to drive audiences to newspapers and magazines' websites, thereby reducing traffic and advertising revenues for publishers. They considered that legislative intervention at EU level could have a negative impact on the cooperation between online service providers and publishers and ultimately affect smaller publishers negatively.
The fact that concerns about a neighbouring right come from publishers in countries where this is already in place should be a cause of concern for legislators, which should listen to the remarks of those who now have first-hand experience of the impact. It is likely that, if passed, such provisions will have to be tested and kept under review for years to come, should they not deliver the intended effects.
