MEPs are preparing to vote on Wednesday 12 September on the draft reform of copyright, following rejection of the negotiating mandate by the legal affairs committee in July. At this stage, the scenario is open, although a total rejection of the text – as proposed by the ELDD and GUE-NGL – is unlikely.
In total, 252 amendments have been tabled for the text, which introduces new exceptions to the copyright rules and lays down new measures to ensure better protection of European creation on the web. They mostly focus on two issues: the creation of a new neighbouring right for press editors (Article 11) and ways of combating the value gap (Article 13). These are in effect the two measures that led to the text being rejected in July, MEPs fearing a form of censure of content on the Internet (see EUROPE 12056).
Article 13: around ten scenarios
Several visions clash on the tricky issue of the value gap, which is the difference between the profits made by platforms from protected content and what creators actually receive. Some people want platforms to be made more responsible, like rapporteur Axel Voss (EPP, Germany) and shadow rapporteur Jean-Marie Cavada (ALDE, France), and some insist on the derogations granted to said platforms, such as Catherine Stihler (S&D, the United Kingdom) and Julia Reda (Greens/EFA, Germany).
In terms of measures proposed in amendments 156 to 161, rapporteur Axel Voss suggest on behalf of his group to introduce a duty to cooperate in good faith "if the rightholders do not wish to conclude a licence", a measure that should not apply to small and microenterprises.
Shadow rapporteur Jean-Marie Cavada (ALDE, France) proposes introducing measures to ensure better application of licence agreements and, in the absence of such agreements, make platforms responsible for ensuring the unavailability of works identified by the rightholders or deleting them without waiting for their departments by preventing them from reappearing. He says measures should be "appropriate and proportionate" (scale/nature of the platform and availability of technology). He tabled the amendment on behalf of his group (Amendment 169) and some fifty MEPs, mostly French, S&D and EPP (amendments 220-224).
A third option, defended by a group of mostly socialist and liberal MEPs, including Marietje Schaake (ADLE, the Netherlands), backs the introduction of measures to allow application of licence agreements, but does not foresee anything in the event of absence of agreement (amendments 250 and 251).
Amendments 214 and 100-105, tabled respectively by shadow rapporteur Julia Reda (Greens/EFA, Germany) on behalf of her group, and by Catherine Stihler (S&D, UK) on behalf of the internal market parliamentary committee, take this approach. However, they also insist on derogations granted to platforms when it comes to responsibility under the e-commerce directive.
Another group of MEPs, including Tiemo Wolken (S&D, Germany), abstains from talking about ‘responsibility,’ preferring ‘information’ measures to ‘preventative’ measures, allowing informed rights holders to demand payment for their content, or its withdrawal or disappearance from lists of search results.
Finally, two deletion amendments have been tabled by the ELDD and GUE/NGL groups (Am. 90, 125 and 193).
Article 11: re-emergence of 'presumption'
Concerning the creation of a neighbouring right of press editors, there are fewer options on the table (which are less complex). Axel Voss and Jean-Marie Cavada have each tabled an amendment in favour of a ‘non-retroactive’ neighbouring right. Voss, however, explains that it does not include hyperlinks accompanied by simple words (Am. 151-155), whereas Cavada excludes from this right the use of unsubstantial parts of a press publication such as isolated words or very short extracts or facts (Am. 163).
Another series of amendments: those in favour of presumed representation, which would allow press editors to take action against content aggregators. This idea is backed by Julia Reda on behalf of the Greens/EFA (Am. 212), by Czech MEP Jiří Maštálka on behalf of the GUE-NGL (Am 124) and by the group of MEPs to which Marietje Schaak belongs (Am 245-248). Julia Reda also suggests, in Article 11a, that the supply of hyperlinks should not constitute an act of communication to the public when the hyperlink is only necessary information for finding or requesting source content.
The third option on the table is to delete this article, as demanded by the ELDD and GUE-NGL.
Towards extra exemptions?
The reopening of the negotiating mandate allows MEPs to demand new exceptions to copyright (other than those foreseen by the Commission’s text).
Searching for text and data. Several MEPs have re-opened the exception to copyright for searching for text and data (Article 3) so that it applies beyond the search domain.
Freedom of panorama. Others, like Jean-Marie Cavada or Julia Reda, re-introduce their call for freedom of panorama (in other words an exemption for work situated in a public area).
Exemption for UGC. In parallel, Cavada, Reda and Adinolfi (ELDD) and Maritje Schaak’s group (GUE/NGL) back an exception for user-generated content (UGC), to allow it to answer existing protected content for the purposes of criticism, illustration, caricature, parody or pastiche, according to certain condition.
Miscellaneous. The other exceptions requested cover (notably for organisation of training, open learning communities or remote learning) the lending of books or the public domain. There is also a raft of amendments tabled by the GUE-NGL on the question of remunerating authors (Articles 14a, 15a, 16a and 17). (Original version in French by Sophie Petitjean)