The shadow rapporteurs are getting ready to carry out an analysis on Tuesday 27 February of one of the most sensitive issues in copyright reform, namely, the value gap. To this end, Axel Voss (EPP, Germany) has begun to circulate a draft compromise amendment that is increasingly close to the one proposed by the Commission.
In practice, this removes the reference to "effective content recognition techniques" whilst retaining the obligation for the platforms that store and provide access to a significant amount of protective content, to take appropriate and proportionate measures to ensure that the rights of the rights holders are respected. Julia Reda MEP (Greens/EFA, Germany) immediately denounced this as an attempt to reintroduce what she called "censorship machines".
The value gap problem
It should be recalled that the draft directive presented in September 2016 introduces new exceptions to copyright rules and sets out new provisions to ensure the effective market functioning for the use of protected content and other objects. The two most controversial questions are unquestionably related to the creation of a new neighbouring law for newspaper publishers (article 11) and the way to rectify the value gap (article 13), a principle that involves certain online platforms providing the public with free content but without necessarily paying the rights holders.
While the Council is shifting towards a difficult clarification of the notion of an “act of communication”, Parliament appears to be moving towards the Commission's text. The compromise amendment prepared by Axel Voss suggests that it should be obligatory for the platforms that store and provide access to protected content and which are, “therefore more than simple physical structures and exercise an act of communication to the public”, to conclude appropriate licensing agreements. It also calls on the platforms that are in contact with a significant amount of protected content to take "appropriate and proportionate measures" to apply the licensing agreements, when there is one, and to prevent the availability of content when there is no licensing agreement. In one clause, it also mentions “the duty of due diligence" for these platforms. The member states are called on to promote, when it is appropriate, cooperation between the different parties, in an effort to define good practices but without, in this connection, making a reference to the recognition techniques the Commission discussed. Finally, the compromise amendment introduces a complaint mechanism for users whose content has been affected by the measures of the directive.
A different approach at the Council
So far, there has been no information at all from the member states about the most recent experts' meeting that took place on 21 February (see EUROPE 11961). The following meeting was expected to take place on 16 March but has been postponed to 28 March due to a copyright conference on the same day. (Original version in French by Sophie Petitjean)