European Parliament vote on EU copyright law reform looms large (UPDATED)

October 2018



Tomorrow (Wednesday 12th September) sees the European Parliament vote on what have become a series of somewhat controversial reforms to EU copyright law, in a battle which pits content creators and content owners against the tech giants of Amazon, Google, YouTube and Facebook. Its been a fertile feeding ground for the lobbyists as both sides fought to catch the eyes and attention of of politicians and the general public, with the tech giants spending heavily on lobbying and the content axis wheeling out a plethora of stars and big names in advance of a vote which could “change the balance of power between producers of music, news and film and the dominant websites that host their work.”


The Directive on Copyright in the Digital Single Market 2016/0280(COD), also known as the EU Copyright Directive, is intended to harmonise certain aspects of the European Union copyright law and moved towards a ‘Digital Single Market’.The European Parliament Committee on Legal Affairs approved the proposed Directive on the 20th June 2018, with further voting by the entire European Parliament required before it became a Directive. On the 5th July 2018, a vote on the Directive rejected the then reforms with 318 MEPs voting against and 278 in favour (and 31 abstentions) The Directive was then subject to further discussion and amendment.The most controversial reforms are contained in Article 11 and Article 13


Article 13 is taking a fresh look at ‘safe harbour’ and user-generated content platforms such as YouTube, and the draft reforms have promoted the idea they should be made liable for copyright infringements committed by their users — instead of the current regime of takedowns after the fact (which means rights holders into having to constantly monitor and report violations).


The reforms would require websites who primarily host content posted by users to take “effective and proportionate” measures to prevent unauthorised postings of copyrighted content or be liable for their users’ actions.  Blur’s drummer Dave Rowntree (now a lawyer) told the Guardian newspaper “YouTube have rather cleverly found a niche for themselves where they can have their cake and eat it. They can use clever artificial intelligence software to see what the user is doing … yet when it comes to having to pay out a fair share they say ‘no … we just provide a website’.” Indeed there is a certain “irony£ in Google’s position, given that (for example) “Google’s ad business conducts automated surveillance of the users of its various platforms for ad targeting purposes — and through that process it’s hoping to control the buying behaviour of the individuals it tracks.”. But it doesn’t seem to be able to take the same approach with copyright infringement


The tech giants respond by saying the reforms would ‘kill the internet’ and would amount (at least) to automated censorship. “The only way to scan the platform continually is to have automated filters in place. There is no other way to do it,” said Siada El Ramly, director general of EDiMA, a Brussels group representing Facebook, Google and other internet platforms. She said filters “won’t be able to discriminate whether it is a commercial business or an individual putting the content up … it is not infallible and mistakes will be made”. The tech lobby argues the reforms “takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users”.


YouTube’s Chief Business Officer Robert Kyncl has said the ability for creators and artists to find fans and build a business online is also now “at risk” thanks to Article 13. Kyncl said “This outcome would not only stifle your creative freedom, it could have severe, negative consequences for the fans, the communities and the revenue you have all worked so hard to create.” and explained that user-generated content had been integral to the success of videos by Drake, Dua Lipa and Alan Walker, explaining: “Creators and artists have built businesses on the back of openness and supported by our sophisticated copyright management tools, including Content ID and the recently launched Copyright Match Tool that manages re-uploads of creators’ content.


A coalition of original Internet architects, computer scientists, academics and others including the likes of world wide web creator Sir Tim Berners-Lee, security veteran Bruce Schneier, Google chief evangelist Vint Cerf, Wikipedia founder Jimmy Wales and entrepreneur Mitch Kapor also penned an open letter to the European Parliament’s President to oppose Article 13. Pirate Party MEP Julia Rea said in a tweet “If we allow automatic enforcement of #copyright, say goodbye not just to memes, but also to the public domain. These algorithms are built on the assumption that all culture is privatized and eventually this will be true”.


Public supporters of the Directive include Sir Paul McCartney, Jean Michel Jarre and music trade bodies worldwide.  BASCA Chair Crispin Hunt has said: “The reality is that Article 13 is hardly revolutionary. It is a modest proposal that returns some sense of fairness and responsibility to the manner in which internet platforms operate.” The music industry has been lobbying on closing the ‘value gap’ for some time and the deputy leader of the Labour Party Tom Watson MP, and singer-songwriter, Newton Faulkner were among those at a protest outside Google’s headquarters in London’s Kings Cross. This was another move to raise awareness of issues around the perceived failure of the likes of YouTube to pay over a fair share of their massive revenues. more than 1,300 recording artists, including McCartney, James Blunt, and opera star Placido Domingo signed an open letter to the European Parliament in support of the reforms.


The recorded music sectors’ global trade body the  IFPI pointed out that user upload video streaming services,benefiting”from the misapplication of‘safe harbours comprise the world’s largest on-demand music audience,conservatively estimated at more than 900 million users.The revenue returning to rights holders through these services in 2016 amounted to US$553 million.By contrast,a much smaller user base of 212 million users of audio subscription services (both paid and ad supported), that have negotiated licenses on fair terms,contributed over US$3.9 billion”. That is some gap!  Lyor Cohen, YouTube’s head of music made it clear he won’t talk about the ‘value gap.’ “I do know, from every single senior executive, that we’re not discussing the value gap,” Cohen told Music Week. “We’re discussing how to maximize our funnel and how to grow the business, how to be better partners with them. It’s nice.” Whatever that all means.


The second controversial copyright reform concerns the use of snippets of news content and is covered by Article 11. Article 11 extends the 2001 Copyright Directive to grant publishers direct copyright over “online use of their press publications by information society service providers” extending digital copyright to also cover the news stories which aggregators such as Google News typically ingest and display  – without paying them to do so – whilsat at the same time media firms have seen their profits hammered by the Internet serving up free content. The reforms would seek to compensate publishers for their investment in journalism by letting them charge for use of these text snippets — instead of  being ‘paid’ in traffic.


Europe’s biggest news agencies have urged MEPs to vote for reform, accusing  Google and Facebook of “plundering” the news and destroying their advertising revenues, resulting in a “threat to democracy”. “For the sake of Europe’s free press and democratic values, EU lawmakers should press ahead with copyright reform,” said a statement signed by 20 agencies, including the Press Association and Agence France-Presse.


This vote is important – hence the loud and active lobbying. It seems too close to call but could be an important step in shaping how the internet will forwards. But let’s remember, record labels and film companies are businesses as much as Google and Facebook are businesses. An interesting contribution came from the global songwriters group the International Council For Creators Of Music who last week sent a letter to MEPs urging them to support the copyright reforms – with a wider take on the reforms, and more focussed on the actual creators of copyright and Council’ Eddie Schwartz highlighted the “transparency triangle” found in articles 14, 15 and 16 which increase the rights of artists and songwriters in their dealings with the business end of the music business – record labels and publishers. Article 14 is designed to provide more transparency where corporate entities control the copyright in creative works, while 15 proposes a ‘contract adjustment mechanism’ when older contracts become unfair. Article 16 provides for a dispute resolution procedure in relation to 14 and 15 and had been extended in the committee process, providing creators with additional rights when works are no longer being exploited by corporate copyright owners. Schwartz writes of article fourteen: “This has the potential to be of inestimable benefit to the creator community. Profit-driven enterprises routinely place the interest of their shareholders above those of creators who actually provide the wealth. We are calculatedly viewed, in accounting terms, as merely a cost of operation” and for article fifteen, says this “embraces concepts that protect authors and performers from unfair enrichment, giving us an opportunity to challenge the abuses that routinely arise from unequal bargaining positions”.


With all these voices (and many more) clamouring to be heard – it’s a BIG day tomorrow !


UPDATE: MEPs voted to pass Article 13 of the European Copyright Directive. The EU Copyright Directive will now go to trilogue with the European Union Council, Commission and Parliament to negotiate a final text for passage into law. UPDATE: Amended versions of Articles 11 and 13 were approved in the European Parliament. The final vote was 438 in favour and 226 against.  And the Directive still faces a final vote in January 2019. After that it will need to be implemented by individual EU member states, who could very well vary significantly in how they choose to interpret the Directive’s text. However, Robert Ashcroft, Chief Executive of PRS for Music, said: “The European Parliament today took a bold step forward to ensure a functioning and sustainable digital single market for creative content. ”  Julia Reda of the Pirate Party described the outcome as “catastrophic.” 


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