Law Reform - Revisions to the EU Copyright Directive

The European Economic and Social Committee and the Committee of the Regions adopted their respective opinions in January and February 2017 largely supporting the Commission’s proposal. These were followed by Parliament Rapporteur Therese Comodini Cachia’s report for the JURI Committee in March 2017, which proposed a number of amendments to the proposal, opposing the creation of a new right for publishers for the digital use of their publications and providing more powers to press publishers in order to help them enforce their copyright claims more effectively through a given ability to bring proceedings in their own name before tribunals (against infringers of the right held by authors of the works contained in their press publication).

Her return to Malta to take public office saw the appointment of Axel Voss (EPP, Germany) as Rapporteur in June 2017 and this appointment, coupled with the adoption of IMCO’s opinion (prepared by Catherine Stihler (S&D, UK)) on the proposal, saw an increase in the number of amendments to the proposal and, in the former case, a change of direction in amendments. The IMCO opinion went in the same direction as Comodini Cachia’s report, enlarging the scope of the text and data mining exception and resisting the introduction of a press publishers right. However, it also proposed much more substantial amendments to the Commission’s proposal through, among other things, introducing new exceptions to copyright protection such as the public lending of literacy works and user-generated content, as well as the introduction of fair and appropriate compensation for the uploading of online copyright protected works.

A compromise proposal was circulated on 26 September 2017. However, strong disagreements between Member States with regard to entrenched provisions and the German delegation’s request for an opinion of the Council Legal Service on a series of questions concerning the measures imposed on internet service providers, further slowed progress.

Amendments now stand at over a thousand and the vote on the European Parliament report by the JURI committee, originally scheduled for 10 October 2017 will now take place in January 2018. In the interim period, the Council of the EU published a report on 13 December 2017 on the progress made thus far and putting forward differing compromise options taken from commentary.

In brief, the major sticking points that remain concern the following provisions:

-          Article 3 – Text and Data Mining – will EU-wide permission to conduct research using text and data be limited to research institutions only;

-          Article 11 – Copyright for news sites – will all use of journalistic content online (even if linked) require a license from the publisher;

-          Article 13 – Censorship Machines – will internet platforms be forced to monitor user behaviour (identify and prevent infringement) where they can upload content; and

-          Regulation of creative and free internet culture.

Germany’s differing and strict view on copyright law provisions, enforcement and objectives in comparison to many member states has made them strong critics of the format and content of the proposal so far. Axel Voss, himself a German MEP, has waited for the German government to form as they are likely to hold the key in final decisions on whether the amendments go far enough for compromise to be reached amongst the harshest critics of the text.