EU Copyright Change Moves Ahead; Platform Upload Monitoring Provision Intact

An EU plan to require major content-sharing platforms to monitor users' uploads moved forward Wednesday. By 14-9, the European Parliament Legal Affairs Committee (JURI) approved a report responding to a 2016 European Commission proposal for a directive on copyright in the digital single market. The report, by Member of the European Parliament (MEP) Axel Voss, of Germany and the European People's Party, supports the EC's controversial calls for a new right (Article 11, the "neighboring" right, also called the "snippet tax") for online news publishers, and for large platforms to filter users' uploads to prevent copyright breaches (Article 13).

Content providers cheered the vote. Digital rights activists and the tech sector said the provisions will harm individuals' rights and Europe's digital sector.

The decision whether to start negotiations with the EC and European Council will be announced at the beginning of the July plenary session, JURI said. MEPs can challenge that decision and ask for a plenary vote on whether to launch talks, it said. JURI member Julia Reda, of Germany and the Greens/European Free Alliance, said in a news release she will seek such a vote.

The really controversial measures have now "passed another milestone," said Hogan Lovells (London) intellectual property lawyer Alastair Shaw in an interview. The only thing that will stop articles 11 and 13 from going into negotiation will be triggering of a full plenary vote, he said. Given the closeness of the JURI vote, and such opposing viewpoints, it's possible the provisions could see further debate, he said.

There were many amendments to Voss' report, many of which sought to ensure artists and news publishers aren't deprived of fair remuneration for their work by strategies of sharing platforms and news aggregators, JURI said. The text limits what elements of a news article news aggregators can share without having to pay a license fee to the rightsholder, and it requires sharing platforms to pay copyright owners whose content is uploaded or ensure that an upload containing protected material is blocked if no fee is paid. Upload measures must be designed to not catch "non-infringing works" and there must be easy redress systems for those who think their content has been wrongly taken down, it said. The provision doesn't apply to online encyclopedias such as Wikipedia or open source software platforms such as GitHub, it said.

The copyright reform debate has been divisive, and progress was stalled by strong opposition to articles 11 and 13 (see 1801250001).

'Long' Struggle

The narrow majority that approved Voss' report "suggests that the struggle is still long," telecom consultant Innocenzo Genna blogged: The discussion is important because Europe's content and journalism industries must be protected, but the current proposal "seems to cause so much collateral damage that it should be heavily rethought." Genna cited a recent open letter by internet luminaries such as Vint Cerf and Tim Berners-Lee that said the copyright proposal should be restarted from scratch. Article 13 was also criticized by David Kaye, U.N. special rapporteur on the promotion and protection of the right to freedom of opinion and expression. He voiced concerns about potential prepublication censorship, ineffective redress mechanisms, and potential impact of the measure on nonprofits and small content-sharing providers.

The JURI vote got praise from content publishers. It's a "first step in the right direction towards better remuneration for authors when their works are exploited online," said the Federation of European Film Directors, Federation of Screenwriters in Europe and Society of Audiovisual Authors. Giving publishers a neighboring right will "encourage those companies who wish to monetise publishers' content to seek permission and a licence to do so, whilst continuing to allow individuals to share links for free," said the European Publishers Council, European Magazine Media Association, European Newspaper Publishers Association and News Media Europe. The European Parliament sent a "strong and unambiguous message" by clarifying what the music sector has said for years, said Independent Music Companies Association Executive Chair Helen Smith. "If you are in the business of distributing music or other creative works, you need a licence, clear and simple."

Others panned the panel's action. "Hundreds of academics, civil rights groups and the online sector have all opposed these measures," said the Computer & Communications Industry Association. Introducing a publishers' right and upload filters will hurt European citizens' fundamental rights and Europe's digital sector, said CCIA Senior Policy Manager Maud Sacquet. "Upload filters are opposed by every independent, expert voice in this debate," said European Digital Rights Senior Policy Adviser Diego Naranjo. The question is whether MEPs will be willing to publicly support "such an awful proposal" weeks before 2019 parliamentary elections, said EDRi Executive Director Joe McNamee.

Lawmakers "let consumers down on copyright," said the European Consumer Organisation (BEUC). Pressure by the copyright industry has "again scuppered even modest attempt to modernise" the law, said BEUC Director General Monique Goyens: "The internet as we know it will change when platforms will need to systematically filter content that users want to upload." The European ISPs organization said it's "deeply concerned" by the adoption of articles 11 and 13, and urged the European Parliament to reject the JURI committee's mandate to start talks with the Council until there's a more proportionate, targeted approach. If the main ambition of the EC and Parliament was to create a non-fragmented digital single market where innovation in the creative sector could flourish, "this result is a complete failure," said DigitalEurope Director-General Cecilia Bonefeld-Dahl.

Data Flows

Meanwhile, EU institutions reached political agreement Tuesday on a regulation on the free flow of nonpersonal data. The plan seeks to boost data market potential by: (1) Improving the mobility of nonpersonal data across borders in the single market. (2) Ensuring that the powers of relevant authorities to request and get access to data for regulatory control purposes remain unaffected. (3) Making it easier for professional users of data storage or other processing services to switch providers and port data. It's "a major step" toward achieving a digital single market with better competition for cloud services, said CCIA Europe Vice President Christian Borggreen.