EU

EU Copyright Directive: Cracks Appear in Support for Article 13

With final negotiations underway among the European Parliament, Council and Commission over the European Union’s proposed Copyright Directive, and lobbying for and against it at a fevered pitch, Article 13 of the directive, which could force online service providers to actively screen content uploaded to their platforms for copyright infringing material, remains at the center of the debate. This week, however, cracks began to appear in once solid wall of support for the measure among major rights owners.

In a letter to the negotiating parties, the Motion Picture Association, representing the major studios, along with the Independent Film & Television Alliance, the Association of Commercial Television in Europe, and several major European sports leagues, took issue with changes being considered in the “trilogue” to the version of Article 13 passed by the European Parliament in September, claiming they would further cement the dominance of major online players such as YouTube, and asked that their content be excluded from provision should those changes be adopted.

“Recent proposals would undermine current case law of the Court of Justice of the European Union (CJEU) which already makes it clear that online content sharing service providers (OCSSPs) communicate to the public and are not eligible for the liability privilege of Article 14 E-Commerce Directive,” the organizations wrote. “Recall that the initial goal of Article 13 was to codify the existing case-law in a way that would enable right holders to
better control the exploitation of their content vis a vis certain OCSSPs which currently wrongfully claim they benefit from the liability privilege of Article 14 E-Commerce Directive. However, unfortunately, the Value Gap provision has mutated in such a way that it now strengthens even further the role of OCSSPs to the direct detriment of right holders and completely undermines the status quo in terms of the EU liability regime.”

The purported “mutations” appears to be a reference to a proposal by the Council of Europe, made up of representatives from EU member governments to adopt certain existing copyright filtering systems, such as YouTube’s Content ID, as the standard to meet for all online platforms, which would leave it to rights owners to identify their content and instances of infringing uses on the platforms, rather than shifting the burden of identifying and filtering infringing content to platform providers.

“Some of the options proposed for discussion at trilogue level indeed wrongfully undermine current law and weaken right holders’ exclusive rights by, among others: creating a new liability privilege for certain platforms that have taken specific steps to avoid the availability of infringing copyright content on their services (but have failed to do so effectively), and conditioning protection of copyright online on right holders bearing the full burden of identifying and notifying copyright infringing content to platforms,” the letter said. “These would constitute gifts to already powerful platforms, and would de facto constitute the only real change to the current status quo in legal terms, thus improving the position of platforms, but not of right holders.”

The groups’ complaints come even as YouTube has continued its ferocious lobbying against Article 13 altogether, claiming it could still compel the Google-owned platform to remove huge swathes of legal content for fear of liability.

The music industry, meanwhile, largely continues to support the measure, pushing back forcefully against YouTube’s claims.

In their letter, the TV and sports organizations suggest narrowing the scope of Article 13 to single out music and exclude other types of content.

“If…any new safe harbour/”mitigation of liability” would be part of a final trilogue agreement, we would respectfully urge you to disapply the entire value gap provision to our respective sectors,” the letter said. “This could simply be achieved by making Article 13 specific to musical works and phonograms, as was the case, for example, in Title III of the Collective-Rights-Management-Directive of 20145.”

One more negotiating session is scheduled, currently for December 14. A final vote on the directive is tentatively slated for mid-January.

 

EU failing to fix copyright directive: lawyers comment on leak

The directive is currently going through the ‘trilogues’, where member states’ governments can negotiate with the EU in an effort to produce a final version of the law before the final draft is presented to European Parliament for a vote. But the leaked document, which contains proposed revisions to article 13, has failed to impress practitioners.

Source: EU failing to fix copyright directive: lawyers comment on leak

How EU Copyright Directive Could Disrupt Transatlantic Digital Trade

There’s no question that the proposed link tax seeks to insulate European publishers from the disruptive impact of the U.S. technology sector. Indeed, in a recent proceeding before the U.S. Trade Representative, a news publisher representative even acknowledged the proposal aimed to provide a “higher level of protection for news publishers in the European Union,” despite insisting that the new regulations “were not trade barriers.”

Source: Sticking Points in Transatlantic Digital Trade, Part II

YouTube’s Lyor Cohen that EU’s Article 13 is detrimental to remixes, fan videos

Lyor Cohen, YouTube’s global head of music, is the latest YouTube executive to publish an ominous forewarning about the European Union’s controversial Copyright Directive and the effect it will have on the music community. “Let me be clear: we understand and support the intent of Article 13. We need effective ways for copyright holders to protect their content,” Cohen wrote. “But we believe that the current proposal will create severe unintended consequences for the whole industry.

YouTube’s Susan Wojcicki tells artists: Article 13 poses ‘a threat to your livelihood’

The company wants to weigh in on how the legislation is worded to protect its interests, and those of the larger creator community. Wojcicki said YouTube is committed to working with the industry to find a better way to respect the rights of copyright holders, before the language in the EU legislation is finalized by year-end. Wojcicki urged creators and the wider YouTube community to rally against the legislation on social media, using the hashtag #SaveYourInternet.

Source: YouTube’s Susan Wojcicki tells artists: Article 13 poses ‘a threat to your livelihood’

European Union Passes Controversial Copyright Reforms

Controversial reforms to copyright law have been approved by the European Parliament, leading to potentially huge changes to how platforms like YouTube handle user-uploaded content and fan-made music videos. Members of the European Parliament (MEPs) voted in favor of the Copyright Directive by a clear majority of 438 votes for, 226 against and 39 abstentions. An earlier version of the proposal was rejected in July, following fierce lobbying from both the tech and music communities.

Source: European Union Passes Controversial Copyright Reforms: ‘A Historic…

Euro Parliament rejects copyright reform

In a major blow to copyright reform in the EU, MEPs have voted against beginning negotiations on the Copyright Directive including Article 13, which contained measures to address the so-called value gap. There had been frantic lobbying from both sides with even Sir Paul McCartney attempting to persuade MEPs to vote for the Copyright Directive, which had been approved by the JURI committee last month.

Source: Euro Parliament rejects copyright reform, full debate set for September

EU Poised to Rewrite Rules on Uploaded Content, Aggregation

The European Union’s controversial Copyright Reform Directive took a major step toward becoming law across the continent Wednesday as the European Parliament’s Legal Affairs Committee voted narrowly to approve the measure. The vote establishes the Parliament’s official position on the proposed new rules ahead of final negotiations with the European Commission and the member states, although opponents of the measure on the committee could still force a vote by the full Parliament before those negotiations could begin.

The proposal has been the object of intense lobbying over the past two years both by copyright owners and technology companies, particularly regarding the directive’s Article 13, Article 11, and Article 3.

Article 13 requires “online content sharing service provider[s]” to obtain a license for any copyrighted material uploaded by their users or face liability for copyright infringement. As a practical matter, critics of the measure argue, online platforms would be forced to implement sophisticated and expensive content recognition and filtering technologies, similar to YouTube’s Content ID system, as it would be impossible to obtain all of the licenses they might potentially need.

Supporters counter that the provision is tailored to target platforms such as YouTube and Facebook, whose business models are based in part on profiting directly from the presence of unlicensed copyright content, such as by selling advertising against it. Online services operating in a non-commercial capacity, “such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all concerned rightholders, such as educational or scientific repositories,” are exempt from the new requirements, as are services providing cloud-based hosting of content that is not made directly available to the public.

Article 11 creates a new neighboring right for news publishers that would require search engines and aggregators to obtain a license before displaying snippets of articles. Unlike similar “link tax” laws in Germany and Spain, which failed to boost the profits of publishers, the new rules would apply EU-wide, making it difficult for aggregators to circumvent them by obtaining the content from other countries.

Article 3 would put limits on the use of text and data-mining software where the content being mined is not owned or licensed by whoever is doing the mining (The Next Web has a useful summary of the arguments for and against the three provisions).

This week’s vote comes on the heels of the EU’s General Data Protection Regulation (GDPR) taking effect, which was similarly targeted at reigning in the power of major online platforms. Although GDPR rules legally apply only within the EU, their imposition has had a global effect since many non-EU based services collect data on and from EU citizens, forcing millions of websites around the world to retrofit their data collection and privacy policies or face exclusion from EU countries, making the EU the de facto global standard-setter for data collection and privacy practices (see our updated policy here).

The new Copyright Directive, if fully enacted, could have a similar global effect. The new EU rules could give impetus to investment in and development of more sophisticated content recognition technologies, as well as more efficient, automated systems for obtaining licenses and paying rights owners.

In addition to being a boon for rights-tech companies, the development and successful deployment of such technologies could give rights owners outside the EU much stronger grounds to argue that the means to effectively police user-uploaded content and obtain licenses are available and should be deployed globally.

That could shift the terms of the debates currently underway in the U.S. and elsewhere over the proper scope of the copyright safe harbors afforded online services and platforms.

The potential impact of the EU Copyright Reform Directive, as well as the Music Modernization and Copyright Alternative in Small-Claims Enforcement (CASE) acts in the U.S. will be among the topics of discussion at the RightsTech Summit on October 5th in New York. Click here for information on to register for the conference.

 

Rights Owners Rack Up Victories in EU, Australia

The copyright industries haven’t fared particularly well in U.S. trade negotiations recently, missing out on a chance to extend various copyright-protection measures when the Trump administration pulled the U.S. out of the Trans-Pacific Partner, and facing push-back on efforts to incorporate those provisions into a revised NAFTA agreement with Canada and Mexico. But they’re having better luck in Europe and Australia.

Last week, the Australian government unveiled legislation to extend the current digital safe harbors there to libraries, educational institutions, organizations for the disabled, archives, and other cultural sectors. But in a reversal from a previous government position, the legislation would exclude major commercial platforms like Facebook and Google from such protection.

Under current Australian law, the safe harbors protecting networks from liability for copyright-infringing materials uploaded by their users is limited to ISPs. Earlier this year, the government floated a proposal to expand those protections to cover a wider range or networks, including commercial services like YouTube that rely heavily on user-generated content. That proposal was shelved in March, however, and the government began a series of consultations with the copyright industries leading up to last week’s announcement.

The change in course represents a major victory for copyright owners, particularly the music industry, which has lobbied heavily for steps to help close the “value gap” it claims the safe harbors have created on social media platforms. Keeping YouTube and Facebook out of those harbors will make it easier for rights owners to negotiate favorable licensing deals with the platforms.

In Europe, meanwhile, the European Parliament voted this week to reject most provisions of the European Commission’s so-called Sat-Cab proposal that would have allowed broadcasters within the European Union to include content they had licensed for broadcast in their own territory in their pan-European digital video-on-demand and over-the-top services.

The proposal by the European Commission was intended to advance the EU’s Digital Single Market initiative but was strongly opposed by the film and TV industries that have long relied on exclusive territory-by-territory licensing to maximize revenue and secure financing for production.

The vote by the European Parliament is not the final step in the EU’s complicated procedures. The proposal now goes to the Council of Ministers made up of senior officials from the member countries, where European broadcasters have vowed to continue pushing for expanded distribution. But for now, the vote in the Parliament is a major victory for the film and TV producers, who lobbied heavily against the commission’s proposal.

That win comes on the heels of a similar victory for rights owners last month, when both the European Parliament and Council agreed to exclude most copyrighted works for at least two years from another provision of the Digital Single Market rules that strictly limits the use of “geo-blocking” measures on digital goods. The elimination of geo-blocking was strongly opposed by book publishers, who feared it would allow online booksellers such as Amazon to sell ebooks throughout the EU with a single license, undercutting the industry’s practice of licensing digital rights territory-by-territory or language-by-language.

As with the Cab-Sat proposal, the agreement on geo-blocking is not the last word on the matter. But for now, at least, the regulatory tide in the EU that had been running strongly against the copyright industries’ long-standing licensing practices appears to be turning.

 

EU Appoints New Commissioner to Lead Digital Single Market

European Commission president Jean-Claude Junker this week named Bulgarian minister Mariya Gabriel as his candidate for Commissioner for the Digital Economy and Society responsible for overseeing the commission’s Digital Single Market initiative. Gabriel, whose appointment must still be approved by the European Parliament, would replace Günther Oettinger, who had overseen the DSM strategy since its launch in 2015 but was reassigned the budget portfolio earlier this year, and will report to Andrus Ansip, the commission vice president in overall charge of DSM.

Mariya Gabriel

The appointment of Gabriel comes one week after the EC issued a mid-term review of the DSM strategy, in which it called for swift action by the European Parliament and member states to enact its various recommendations.

“The Commission has lived up to its promise and presented all main initiatives for building a Digital Single Market,” Ansip said in the review. “Now, the European Parliament and Member States need to adopt these proposals as soon as possible, for new jobs, business and innovation to take off across Europe.”

The DSM project has been a focus of controversy from the start, as telecom providers, technology companies and copyright owners have all raised objections to one or more of the commission’s 35 legislative proposals and policy initiatives. Agreement on those proposals among the commission, the European Parliament, and the Council for the European Union has been slow in coming. To date, agreement has been reached on only three:

  • Abolition of phone roaming charges within the EU;
  • So-called portability of online content starting in 2018, under which EU citizens from one country will be allowed to access online services they subscribe to at home while traveling in another EU country, even if the content hasn’t been licensed for release in that second territory;
  • Enhanced data protection regulations

Still pending are controversial proposals to harmonize local copyright regimes among the member states to facilitate EU-wide licensing and distribution of content; an end to geo-blocking that results in consumers paying different prices for digital goods in different EU territories; an update to the cable and satellite directive to facilitate cross-border access to TV and radio programming; an update to the rules regarding content distribution and advertising arrangements; and telecom reform, among others.

Gabriel is currently serving her second term as a member of the European Parliament, where she has focused primarily on visa matters and foreign affairs.

In an interview with Politico Europe Gabriel insisted that her lack of a technical background would not be a handicap in her new position.

Being a commissioner, she told the publication, was “primarily a political job, not a technical one,” adding she was looking forward to working on digital issues because “it’s a field that represents the future.”

 

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