The meeting on Tuesday 4 September of MEPs on copyright reform looks like it is going to be intense, given the new compromise amendments submitted by Axel Voss (EPP, Germany) and the extremely negative reactions published so far on Twitter.
The rapporteur is effectively attempting to obtain the support of the shadow rapporteurs by removing the reference to “technical measures” as a means of tackling the value gap.
Value gap as focal point of reform
This phenomenon involves the disparity between the profits made by the online platforms from protected content and the benefits that actually go to the content creators. This is at the heart of the copyright reform launched in 2015.
In its legislative proposal, the European Commission proposed in article 13 aim to tackle this issue by targeting the online platforms that provide a significant amount of content and play an active role, particularly by way of optimising content presentation.
According to the initial legislative proposal, these platforms would be obliged to introduce technical measures to ensure content protection and when they do not benefit from exemptions to responsibility as stipulated in the 2000/31/EC “e-Commerce” directive, to conclude license contracts with rights holders.
At the end of June, the judicial affairs committee (JURI) amended this provision by expanding the definition of the platforms involved and by removing the reference to the so-called “safe harbour” clause in the e-commerce directive as a means of ensuring that the platforms were still covered (see EUROPE 12045).
This position, however, was rejected by the plenary session at the beginning of June, which reopened the debate as a whole (see EUROPE 12056).
Axel Voss’s proposals
In the perspective of the new vote due to take place at the European Parliament on Wednesday 12 September, MEPs are called on to submit their amendments to the text before Wednesday 5 September.
In this context and in the knowledge that a new meeting of the shadow rapporteurs is planned for Tuesday, the rapporteur, Axel Voss (EPP, Germany), distributed a new draft of compromise amendments, which includes the removal of the reference to (technical) appropriate and proportionate measures. In its place, he calls on the Commission and Member States to “encourage dialogue between the rights holders in order to harmonise and define best practices for ensuring the effective functioning of the license agreements” and cooperation between the platforms and rights holders when using their content. This proposal has so far had anything but a warm reception from MEPs active on Twitter.
The main opponent to this reform, the MEP from the Pirate Party, Julia Reda (Greens/ EFA, Germany) criticised the fact that this compromise “still makes platforms liable for all their users’ copyright infringements, with no safeguards to prevent filtering… Platforms can either filter everything or get a license for every work in the world”.
Even though Michal Boni (EPP, Poland) is a member of the same political group as the rapporteur he exclaimed “Mr Voss has not learnt any lessons from the vote lost in July”. Daniel Dalton (ECR, UK) also said that he would oppose the suggestion from the rapporteur. According to Mr Dalton “there are no real changes here”.
Jean-Marie Cavada (ALDE, France) was also critical and said “the proposal does not suit me. It will block the system and the authors will not get paid. Both the passive and active platforms will be treated in the same way”. He said that he was in favour of an amendment that would include technical measures for the active platforms alone and an algorithm that indicated what content is free from copyright and what content is not. A deadline for adaptation and negotiating with right holders regarding reactive platforms is also expected to be planned.
Almost no changes to neighbouring law
It should be pointed out that the proposals from the rapporteur also briefly discuss another controversial point in the reform, the creation of a neighbouring law for newspaper publishers.
Overall, Mr Voss is maintaining the approach by the JURI Committee, namely, a law that is valid five years after the publication of the protected content. In the recitals, however, he is only saying that the protection shall not extend to the factual information reported in the journalistic articles from a press publication and “will therefore not prevent anyone from reporting such factual information”. The reference to the amount of compensation is also withdrawn in the event of the content seen as the most important, succeeding (best seller clause). (Original version in French by Sophie Petitjean)