It's back to square one. On Thursday 5 July, a majority of MEPs decided to reject the negotiating mandate for the legal affairs committee on copyright reform, which called for the creation of a neighbouring right for newspaper publishers. The dossier has been sent back to the next plenary session (10-13 September).
It was barely 30 votes that made all the difference: 278 MEP supported the mandate, 318 opposed it and 31 abstained. This means that 124 MEPs were absent during the vote. According to one observer, it was the vote by the Polish MEPs, who all opposed the mandate, that made all the difference.
A difference of approach
It should be said that the legislative proposal tackles a sensitive issue: what instruments to put into place to tackle the value gap, namely, the difference between the profits made by a platforms that put content online and the profits made by the creator of the content in question. This issue has far wider implications. Overall, should it be necessary, as called for by the creative industry, to exert more legal obligations on the big platforms like Youtube or the Dailymotion in an effort to protect European creativity on Internet? Or should this approach be avoided in the name of the freedom of expression and circulation of information, as claimed by those defending a free and open Internet (and de facto, by the platforms themselves)?
On this question, the European Commission decided in September 2016 to encourage the platforms that store and provide access to large quantities of content downloaded by users to conclude licensing contracts with the rights holders, unless they play a passive role under the terms of the e-commerce directive (2001/29). It also wanted them to take, “measures, such as using efficient techniques” to ensure application of these agreements and prevent the downloading of content that had been flagged up as protected (by digital fingerprint, for example).
On the basis of this proposal, the Committee of Permanent Representatives to the Member States decided on a negotiating position of the Council on 25 May (see EUROPE 12027) and the legal affairs parliamentary committee (see EUROPE 12045) voted on it on 20 June last. The main changes introduced by the two institutions include the definition of the platforms concerned (“providers of online shared content services”) and the concept of an act of communication, which excludes the application of the exception of responsibility under the terms of the E-commerce directive.
Votes scrutinised
The new European Parliament internal regulation allows for a 10th of MEPs to revote on reports adopted during a Parliamentary committee and which are supposed to act as a basis for inter-institutional negotiations. It was on this provision at the opening of the plenary session that the Greens/EFA, EFDD and the GUE/NGL, as well as 85 individual MEPs, launched themselves. An armada of lobbyists also turned out, particularly on the question of rights holders.
The past few days have been intense and the MEP in charge of the dossier, Axel Voss (EPP, Germany), asserted that he had received more than 600,000 emails over the past two weeks. Virginie Rozière (S&D, France) even went as far as mentioning death threats against her German colleagues.
Suspense reined supreme until the very last moment. The EPP and ECR imposed a voting order for the mandate, while the S&D and ALDE called for a free vote. In terms of nationality, according to the voting list, all the Polish MEPs voted against the mandate. The majority of French MEPs, however, voted in favour of the mandate, with the exception of two Green MEPs. German MEPs were relatively divided: the majority of Christian Democrats (EPP) followed the line of Axel Voss by voting for the mandate but the majority of other political groups rejected the text.
Reactions
The reactions were not slow to arrive. Unsurprisingly, the rights holders said that they were “disappointed” by the vote but were determined to continue fighting.
The newspaper publishers that support article 11 in the legislative proposal and mandate in favour of creating a new neighbouring law for their sector, denounced the, “intense lobby of MANIPULATIVE anti-copyright campaigners, US internet giants and vested interests who benefit from stealing and monetising publishers’ valuable content”. The Scam organisation representing authors also denounced the disproportionate resources spent by mandate opponents, which it says had reached a figure of more than €30 million. The European Group of Societies of Authors and Composers (GESAC) referred to a “missed opportunity” whilst the Society of Audiovisual Authors (SAA) highlighted the risk of delays that this vote would provoke with regard to the legislative process. This is because once the European Parliament position is adopted, the co-legislators still need to begin negotiations, which would involve several months of discussions (while the European elections are swiftly approaching). At the European Parliament, Jean-Marie Cavada (ALDE, France) said that this was, “a sad day for cultural independence and the press in Europe”. The French Socialist delegation added, “freedoms were not under threat like culture is under threat today”.
At the opposite end of the spectrum, the BEUC (consumers), EDRI (Internet freedom), CCIA (representing Facebook and Google) and the EDiMa (the online platforms association) largely welcomed the result of the vote. Edima even went as far as saying that it was “happy that democracy had triumphed”. Monique Goyens, Director-General of the BEUC, stated “it is extremely urgent that the legislative debate is reorientated. The Internet must remain a place where consumers can freely share their own creations, opinions and ideas”. The MEPs, Sven Giegold, Ska Keller and Philippe Lamberts Tweeted “victory!”
Commissioner Andrus Ansip declared that he would do his, “utmost to help Parliament reach a compromise in-line with the objectives of the initial reform”. He concluded that, “Let's stop the slogans from the lobbies and again begin our search for solutions. My point of view: 1) we should not accept compromises that put the freedom of expression and hyperlinks in danger; 2) we should not accept that artists and quality media are unprotected”. (Original version in French by Sophie Petitjean)