Response to the proposed Copyright Directive

A response to those concerned about the new Copyright Directive, which will be voted on by the European Parliament this week. 

Dear Friend,

Over the last months, I have received thousands of emails about the Copyright Directive, as have my fellow Members of the European Parliament (MEPs). Discussions about this file have been extremely controversial and MEPs have been the target of massive lobbying efforts from two distinct camps: those who oppose particular elements of the Copyright Directive, especially Articles 11 and 13, and those who emphasise that content creators must receive fair remuneration for their work, also when it is used online.

Throughout the negotiation process on this file, the Greens/EFA Group has fought to defend the rights of creators to get their fair share of the profits their work generates. We remain committed to this goal. However, the current text of the Directive comes with a whole host of weaknesses that will have far-ranging consequences for how we use the internet. That is why our Group voted for sending the text back to Committee for further discussion and amendment in July.

On 12th September, we will vote on the final version of the text. Unfortunately, no breakthrough has been made yet to eliminate the worst problems that our Group objects to. In my opinion, a clash of two very important principles lies at the core of this conflict. On the one hand, there is an undeniable right for creators to be compensated appropriately and fairly for their work. On the other hand, we must remember that the internet is not a space populated only by rights holders and platforms, but also the public. And the public must have a right to free expression online. So far, we lack a good legal framework that balances these two principles.  

However, the mechanisms suggested in the Legal Affairs Committee (JURI) text, which are meant to ensure that this finally happens, are extremely heavy-handed and represent a clear departure from anything we have seen before in Copyright law. Especially the obligation on platforms to use upload filters as implied by Article 13, which is in my view, not a measured and appropriate response to this problem. That is because in order to comply with the law and avoid liability, a platform would have to use a filter that only allows the upload of works that have been identified to the platform by those rightsholders or collecting societies for which the platform has conducted a license agreement (whitelist). Every other work, for example all works by amateurs, would have to be blocked by default, because the platform cannot be certain that the work does not constitute a copyright infringement.

I agree with our Shadow, Julia Reda, that this approach fails to strike a fair balance between the interests of creative industries and the public, and would close down many online platforms to new and emerging artists who are not (yet) licensing their works professionally. Julia has written extensively on these issues on her website, but many academics and internet experts have also warned against the (largely unintended) negative impact of Article 13. Instead, the alternative proposal we introduced focuses on fair remuneration of authors, but rejects upload filters as an unacceptable measure.

Beyond the immediate effects this would have on internet culture, I also believe that lawmakers should apply caution to incentivising the development of technologies such as upload filters. If we push for such technologies now and become accustomed to their widespread use, there is no telling what they may be used for in future. At the very least, we must remember that such technology would be a powerful weapon in the hands of those who seek to abuse it, for example to suppress dissident political opinions. I believe this is also a crucial socio-political element, which we must weigh very carefully in this debate.  

Of course, the Greens also share the goal of preventing free-riding of online services on the work of journalists and photographers. Indeed, these works are already protected by copyright today, so when a platform uses this content without a license, this already constitutes copyright infringement. But we equally oppose the introduction of a “neighbouring right” as included in Article 11, which would force anyone who wishes to use parts of journalistic content for link-sharing to first get a license form the publisher (e.g. to display link previews using headlines of articles, excerpts etc.).

Years of experience with the neighbouring right for press publishers in Germany have shown that this new right does not generate any profits. Therefore, we do not believe that the neighbouring right will do anything to improve the economic situation of journalists. In fact, pressing ahead with this would needlessly limit access to online information and discourage the use of hyperlinks.

Instead, the Greens/EFA Group is suggesting the introduction of a “presumption rule”, which would simplify how press publishers handle copyright issues. These can be very complex nowadays, because individual authors of articles hold the copyright. This rule establishes the default legal assumption that publishers have the right to license and enforce the copyright of articles they publish. Unless an online service can prove that it has independently acquired a license for the article directly from the journalist, it will have to conduct a license agreement with the publisher.

In contrast to the proposed neighbouring right for press publishers, the presumption rule does not create a parallel legal regime to the existing copyright of journalists, which we value deeply. The neighbouring right would give press publishers control over individual sentences that are currently not protected by copyright. They would therefore enjoy more control over articles than even journalists. It is true that the latest version of the neighbouring right now includes an exception for hyperlinks, but these hyperlinks are only supposed to be accompanied by “individual words”. So even a link accompanied by the headline of the news article a user is linking to would require permission from the press publisher.

These are two of the main issues with the text, but of course there are several others. Unfortunately, it goes beyond the scope of this email to discuss all of these. However, Julia has provided some very succinct summaries of these issues (e.g. relating to text and data mining), so I recommend having a look at her website.

All in all, I believe we must approach complex legislation like the Copyright Directive with caution and it is not easy to weigh the different principles and issues it raises against each other. So far, the parliament’s Rapporteur has, in my view, failed to establish a good balance in the text, which could attract the support of a solid majority in this House. But I remain optimistic that the plenary vote can introduce the much-needed changes to finally achieve this.

Lastly, I would like to thank you for raising this issue with me. It is good to see that so many people addressed their concerns about the Directive (regardless of whether they were in favour of it or against it) to their elected representatives.

Warm wishes,  

Molly Scott Cato