The Council of the EU might introduce the idea of presumption of representation of press publishers defended by the former rapporteur, Therese Comodini Cachia. It is, at least, one of the options considered by the Estonian Presidency in its draft proposals to reform European copyright law.
The options to be put on the table of an intellectual property working group on 11 and 12 September were leaked by surveillance network Statewatch. They date from 30 August and cover Articles 1, 2 and 10 to 16 of the draft directive on copyright.
For the two most controversial options in the reform process – the right of press publishers and the value gap – the Presidency has decided to propose two separate options per domain. The first is similar to what the European Commission proposed and the second is based on a presumption of representation for artists and clarifies the notion of communication to the public in order to tackle the value gap. These four options are clearly independent of one another.
Explanations
Neighbouring right: The draft directive supports the idea of introducing a new ‘neighbouring right’ for press publishers in order to make it easier to grant licences for the online use of their publications, covering their investment and ensuring effective respect of their rights. The idea is that these rights would have the same scope as the rights to reproduction and public availability that were introduced in EU Directive 2001/29/EC for digital use. The Estonian Presidency puts forward two options here – the European Commission’s proposal extended to extracts (Option 1) and presumption of representation that would allow publishers to grant licences and apply a right to reproduction and publication of content (Option 2). Under this latter option, member states would have to ensure that in the absence of proof to the contrary, the publisher of a press publication is considered as the person authorised to sign licences and the person seeking to have measures, procedures and corrections applied, as laid down in current copyright rules.
Value gap. The draft directive attempts to tackle the value gap whereby some websites provide free content to the public without necessarily paying copyright owners for it. Music websites like YouTube and Spotify are a particularly good illustration of this, explains the Commission, which highlights the fact that Google’s subsidiary (YouTube) only finances the music business to the tune of around €600 million a year, whereas Swedish music streaming service, which only relies on paid subscriptions (three times less), contributes around €1.6 billion.
In Article 13 and Recital 38 of its proposal, the European Commission suggests forcing service suppliers that stock and provide copyright-protected work to the public to sign licence contracts with rights holders, save where they play a passive role under the e-commerce directive. It proposes that in all cases, suppliers storing and offering a large number of works should ensure protection for said works, for example through application of effective technology.
Again, the Estonian Presidency puts forward two options to the member states on this issue – either using what amounts to the Commission’s proposal (Option A), or clarifying the controversial idea of an ‘act of communication’ that was introduced in the e-commerce directive (Option B). In the second scenario, the member states must consider that a service provider storing and actively providing to the public access to protected works, including through the optimisation and presentation or promotion of these works and other protected objects, is carrying out an act of communication to the public and therefore requires authorisation.
In these two options, the Presidency says that assessments of whether a publisher provides a large number of works should be done on a case-by-case basis and take a combination of elements into account, such as the total number of copyright-protected content files downloaded by service users and the proportion of protected content downloaded by users compared with the total quantity of content available on the service. The assessment of the relevance and proportionality of measures to be taken by the IT company should take account of the type of content downloaded by the users, the state of the art in existing technology per content type and the size of the service.
Stakeholder reactions
Several stakeholders contacted by EUROPE refused to give an opinion the day after the leaks. The only reactions EUROPE was able to obtain were from Digital Europe – representing the digital technology industry (including Google and Microsoft); Copyright for Creativity (C4C) – representing the European consumer bureau (BEUC) and the digital rights defence organisation (EDRI); and Julia Reda MEP (Greens/EFA, Germany).
Digital Europe and C4C would both prefer the establishment of presumption of representation for press publishers to the creation of a neighbouring right. Digital Europe still questions the utility of action in this domain. In terms of the value gap, Digital Europe rejects the clarification of ‘act of communication,’ stressing that the options on the table are work in progress. Copyright for Creativity (C4C) strongly opposes both options: "We reject the proposals by the Estonian Presidency, one alternative is just bad, the other is even worse. Both proposals brush aside the E-Commerce Directive and try to narrow down the scope by excluding some types of services." This line is broadly shared by Julia Reda MEP, who says that the two value-gap options on the table are both "catastrophic", although to different degrees. She grudgingly admits that Option 1 removes direct responsibility for content-housers in the event of infringements to the law and notes that the requirement to filter content should only apply to websites that allow downloads without licences.
The Statewatch document can be found at: http://bit.ly/2eLExcf (Original version in French by Sophie Petitjean)