Therese Comodini Cachia (EPP, Malta), rapporteur at the European Parliament on the copyright directive, is not in favour of creating a neighbouring right for press publishers. In her draft report released on Wednesday 8 March, she proposed to provide them with a “presumption of representation” instead.
It should be pointed out that in September 2016, the European Commission proposed revising Community rules on copyright in an effort to respond to the current legal insecurity facing rights holders and users. The Commission proposed to adapt copyright exceptions to the digital and cross-border environment, improve licensing practices, in response to the problem of remuneration disparities and introduce a new neighbouring right for press publishers. The last two of these provisions are the most controversial.
Neighbouring right for press publishers
In her draft report for the legal affairs committee (JURI), Ms Therese Comodini Cachia qualified the Commission’s intentions somewhat. On the issue of copyright, she replaced the idea of creating a neighbouring right with a presumption of representation in favour of press publishers so that they can defend their rights in the courts in their own name. The rapporteur explained that, “the use of digital technologies to find articles in press publications will not necessarily be disproportionately damaging to the financial interests of press publishers and in some cases, these links or reference systems (such as hyperlinks) even facilitate users’ research on online information portals”. The rapporteur explained, however, that the protection provided by the directive “does not cover the reference or indexation acts, such as hyperlinks”. The parliamentary committee rapporteurs consulted for their opinions, defend more or less this point of view: speaking on behalf of the internal market and consumer protection committee (IMCO), Catherine Stihler (S&D, United Kingdom) is also proposing to scrap the idea of setting up a neighbouring law, while Marc Joulaud (EPP, France), on behalf of the culture and education committee (CULT), is proposing to limit this right to a three-year period (instead of the twenty years proposed by the Commission) after publication of the content in question.
Remuneration disparity
On the question of remuneration disparities, the Commission is proposing to impose an obligation on all platforms, including the small ones, to take “measures, such as the use of efficient techniques for recognising content that ensures the appropriate functioning of the agreements concluded with the rights holders and use of their content”. On this article, both the JURI and IMCO committees see things the same. On the behalf of the JURI Committee, Therese Comodini Cachia is proposing to clarify this obligation with regard to directive 2000/31/EC on e-Commerce (this includes an exception of responsibility for non-active platforms). She is proposing to limit the directive obligations to “service providers who actively and directly contribute to making uploaded content available to the public and where this activity is not of a technical, automatic or passive nature”. Speaking for the IMCO committee, Catherine Stihler explained that the current text is incompatible with the directive on e-commerce and is opposed to the use of screening. For the opinion, Marc Joulaud is proposing to concentrate on the “Notion of the main objective” rather than on the “technical characteristics of the service (namely, the notion of storage)” to decide which services should be subject to this obligation.
Copyright exceptions
In its draft directive, the Commission proposed that member states introduce compulsory exceptions or a limit on research bodies that carry out examinations of texts and data, to educational activities or bodies involved in the management of cultural heritage. The JURI, IMCO and CULT rapporteurs are all proposing to extend the exception for education to the informal education sector as well, which is outside any formal structures. The own opinion report of Catherline Stihler is suggesting that they extend the definition of research bodies. Marc Joulaud believes that rights holders should be compensated for using their content covered by the exception to text and data searches introduced by the directive. He goes even further and puts forward the idea of creating a European panorama exception and an exception relating to content generated by users.
Responses
Unsurprisingly, the press publishers (EPC, ENPA, EMMA & News media Europe) gave Therese Comodini Cachia’s report a cool response and said, “it calls for rights holders to be given a “presumption of representation” rather than a neighbouring right. Perversely this will encourage litigation instead of incentivising licensing and innovative ways of making content available which was one of the Commission's objectives in proposing the neighbouring right”.
Julia Reda MEP (Greens/EFA, Germany) appeared more pleased and stated, “From a first look, the Legal Affairs Committee rapporteur is making improvements on almost all points of the Commission proposal… However, her report does not go as far as addressing the fundamental problem. The rapporteur is not proposing further steps towards European harmonisation of the copyright framework, such as making all exceptions and limitations mandatory, or to address copyright issues internet users face on a daily basis. Surprisingly, it is the Culture Committee that has proposed a new exception on user-generated content and remixing”
Timetable
The draft report by Therese Comodini Cachia is expected to be discussed at the JURI Committee on 22 and 23 March next. The amendments will be examined on 3 and 4 May and the vote will take place on 20 June. The draft report by Catherine Stihler will be examined on 13 March. The deadline for amendments is 29 March and the vote at IMCO has been arranged for 30 May. (Original version in French by Sophie Petitjean)