Member state experts are preparing to hold a further debate, on 12 February, on copyright reform. Once again, there will be discussion given the Bulgarian presidency’s new compromises and the recent agreement by the German government which is taking position on Article 13. It should be noted that, in Parliament, the committee on legal affairs plans to postpone its vote until 24 April.
The draft directive, presented in September 2016, introduces new exceptions to the copyright rules and sets out new provisions to ensure the correct functioning of the market for exploitation of works and other protected subject matter. Without doubt, the two most controversial issues pertain to the creation of a new neighbouring right for press publishers (Article 11) and to the way to fill the value gap (Article 13).
State of progress of work in Council
The new Bulgarian compromises tackle these two issues exclusively. They are based on discussions by national ambassadors on 31 January (see EUROPE 11952).
On Article 13, the Bulgarian presidency proposes to define the act of communication as an act performed when the online content sharing service provider plays an “indispensable role” and “intervenes in full knowledge of the consequences” of his action to give the public access to copyright protected works or subject-matter. It also sets out a more restrictive definition of “online content sharing service provider” that it defines as a service that is storing and giving the public access to a significant amount of copyright protected works or other protected subject-matter uploaded by its users which the services organises with the aim of obtaining profit from their use. It suggests measures of “liability mitigation” for platforms which carry out the said act of communication. Nonetheless, it underlines that “the possibility to return to the approach adopted in the Commission proposal remains on the table as a possible compromise”.
On Article 11, the Presidency underlines that the two options – that of a new right for press publishers (Option A) and that of presumption allowing press publishers to pursue online aggregators (Option B) – both remain on the table. Nonetheless, it would seem that option A takes preference by exploring a series of compromise amendments. Such amendments suggest making the use of extracts conditional upon authorisation of press publishers, ruling out individual users and shortening the period during which publishers would be protected (the Commission proposes 20 years but the presidency has not put a figure forward). During their meeting on 12 February, the delegations could be called upon to further discuss the Dutch proposal giving member states the choice of providing a right or a presumption. When it comes to member state positions, France, Italy, Portugal, Spain, the United Kingdom, Romania, Greece, Malta, Cyprus, Germany, Denmark and the Commission are in favour of option A, whereas Belgium, the Netherlands, Luxembourg, Latvia, Slovakia, Croatia, Ireland, the Czech Republic, Poland, Slovenia, Lithuania and Hungary are in favour of option B. During the last round of discussions, Hungary, Sweden and Finland are reported to have stated their preference for total suppression of the article but, by way of compromise, Hungary and Finland are said to have opted for option B, and Sweden for option A.
Coalition agreement
However, the coalition agreement for the constitution of the government between German Social Democrats (SPD) and the Conservatives (CDS-CSU) should change the playing field. According to two separate sources, the document – available in German only – is opposed to filters for downloading as mentioned in the copyright proposal.
“The German coalition agreement is remarkable”, said Julia Reda (Greens/EFA, Germany), Pirate party deputy. The parties “strongly oppose filters and want to maintain the safe harbour (Ed.: limited responsibility introduced by e-commerce directive) in Article 13” of the proposal. Also, “they are considering reviewing the e-commerce directive later”, she said. Reda explains that the agreement does not give preference to any one option when it comes to the creation of a neighbouring right for publishers, simply recognising the need to give publishers “legal standing” and improve the “enforcement of copyright in journalistic articles”.
State of progress of work in Parliament
On the European Parliament side, work is also moving forward. The shadow rapporteurs held two meetings in Strasbourg, on 6 and 7 February. The meeting of 6 February was devoted to exceptions to copyright as part of teaching activity (Article 4) and that on 7 February to exceptions linked to the management of cultural heritage (Article 5). According to information available to us, except for provisions relating to the negotiating mechanism (Article 10), no article is considered as being finalised “but 14-16 are almost finished” (see EUROPE 11943).
It appears increasingly unlikely that the members of the legal affairs committee (JURI) will take a stance on 27 March as initially foreseen. During the meeting, the German rapporteur, Axel Voss (EPP), apparently announced that the vote “will most likely be postponed to April”, depending on negotiations.
At this stage, no compromise proposal on Articles 11 and 13 has yet been presented. According to information available to us, the draft compromise amendment on Article 13 could be presented at the end of next week and a preliminary discussion could be held at the next shadow meeting, on 20 February. These discussions could also be coupled to those on Article 14a on the contractual obligation of fair remuneration. No date has yet been put forward for potential compromise proposals on Article 11. See: https://www.parlament.gv.at/PAKT/EU/XXVI/EU/01/03/EU_10322/imfname_10784225.pdf (Original version in French by Sophie Petitjean)