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There [will be] opportunities for the courts to rein in the Directive – or even throw out its worst articles entirely. One key paradox at the heart of the Directive will have to be resolved very soon. Article 13 is meant to be compatible with the older E-Commerce Directive, which explicitly forbids any requirement to proactively...Read more
There [will be] opportunities for the courts to rein in the Directive – or even throw out its worst articles entirely. One key paradox at the heart of the Directive will have to be resolved very soon. Article 13 is meant to be compatible with the older E-Commerce Directive, which explicitly forbids any requirement to proactively monitor for IP enforcement (a provision that was upheld and strengthened by the ECJ in 2011). Any law mandating filters could be challenged to settle this inconsistency.
That means Europe’s Internet users can’t depend on the tech companies to fight this. The battle will have to continue, as it has done in these last few weeks, with millions of everyday users uniting online and on the streets to demand their right to be free of censorship, and free to communicate without algorithmic censors or arbitrary licensing requirements.
EU netizens will need to organize and support independent European digital rights groups willing to challenge the Directive in court.
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1st/9 in Technology Regulations
In the negotiations in Parliament, my team and I were able to make progress on a number of issues:
Fewer upload filters: We managed to restrict the infamous Article 17 (formerly 13) to for-profit platforms: This was not the case in the Parliament version of July 2018. The restriction to services which “play an...Read more
In the negotiations in Parliament, my team and I were able to make progress on a number of issues:
Fewer upload filters: We managed to restrict the infamous Article 17 (formerly 13) to for-profit platforms: This was not the case in the Parliament version of July 2018. The restriction to services which “play an important role on the online content market by competing with other online content services, such as online audio and video streaming services, for the same audiences” was also our doing, even though it unfortunately only made it into a recital, rather than the article itself.
Fair remuneration: Even though the text didn’t end up banning so-called “total buyout contracts”, Article 18 does establish fair remuneration of artists as a fundamental principle for the first time at the EU level. The Commission had had no such plans. In doing so, the Directive meets one of the demands from my 2014 copyright report.
Publisher/label transparency: Article 19 requires transparency from distributors, such as publishers and labels, towards the creatives whose works they exploit. In trilogue we managed to ensure that this doesn’t only happen on demand, but in the form of regular reports.
What is free must remain so: The Directive clarifies in Article 14 that the mere digitization of a work whose copyright has already expired can not fall under copyright anew. This allows platforms such as Wikipedia to publish photos of older artworks without having to worry about licensing. This stems from an amendment I filed, and was already proposed in the Reda Report.
Out-of-commerce works available: Cultural institutions like museums and libraries across Europe will be allowed to put works online which are no longer commercially available, independent of their copyright status (Article 8). In the negotiations, we were able to remove several restrictions to this right that the Commission had been planning.
Minimum standards rather than leveling down: For all new copyright exceptions and limitations that the Directive establishes at the EU level, the principle will apply that member states which already have further-reaching exceptions in national law may keep them. This provision (Article 25) was inserted at our request at the last moment, in trilogue.
Parody allowed everywhere: Article 17, paragraph 7 states that uploaders must be able to rely on a copyright exception for caricature and parody in every member state. Since such an exception doesn’t yet exist everywhere, this fulfills the demand from the Reda Report to make it mandatory across Europe.
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