A new week, a new set of so-called compromises in the copyright discussions…or maybe they should just be re-labelled ‘things we feel like doing and no point commenting on them’ in order to at least comply with EU laws on misleading advertising.

European Parliament: #whatthevoss or how Axel plays hard to get

On the one hand, German EPP Rapporteur MEP Axel Voss has been using the ‘blowing hot and cold’ methodology with his Shadow Rapporteurs in the European Parliament discussions leading up to the Legal Affiairs (JURI) Committee vote: first you do an awful v1 of Article 13, then you substantially improve it in v2, then you worsen it further than v1 in v3 but claim that adding 22 times technical in front of measures is a mistake, then…well, I guess we’ll have to wait and see what v4 looks like.

Council: Bulgarians are just bulldozing ahead

The Bulgarian Council Presidency continues the ‘a new week, a new draft‘ tradition on Articles 11 (press publisher’s right) and 13 (upload filters / censorship machine). Because repeating that the drafts are bad, worse, worst, tends to become a bit depressing, we’ll just stick to a short summary of the salient points that can be identified in this latest set of proposals:

• Article 11

  • Deletion of the presumption approach: whilst for a long time there was some pretence that 2 options were being considered by the Council, with none prevailing over the other due to the lack of a majority for either, the Bulgarians have decided that they were just going to ignore half of the Member States and do their thing (or at the very least, the Commission and publishers’ thing): the new presidency compromise text no longer includes the reference to a presumption of transfer as a potential solution to Article 11.
  • No explicit exclusion of hyperlinks: the Bulgarians are clearly not going to ‘save the link’ on their watch.
  • A broad definition of the concept of ‘press publication’ which goes beyond just news.
  • A broad range of targets and an extension of the problems of Article 13 to Article 11 by making the new right applicable to the ‘use’ by ‘information society services’, which obviously covers much more than news aggregators or media monitoring services and extends to most existing platforms. It also raises yet again the ugly head of provisions that seem to go directly against the Ecommerce Directive.
  • An inefficient carve-out for ‘users’: the same trick is used as for Article 13, namely that users are excluded from the scope but all the platforms that they ‘use’ fall under it, meaning the real life impact on users is actually the same.
  • A duration of 10 years instead of 20 (which still makes no sense for news and still affects our archives)
  • Originality as a threshold is however slowly creeping in, avoiding that the new right be applied indistinctively to facts (e.g. soccer game results or the weather) and original creations.

• Article 13

  • No more Ecommerce Directive for many platforms: The Ecommerce Directive will no longer benefit a ‘large’ platforms, which will hence be liable for communication to the public.
  • Inefficient carve-outs to avoid collateral damage: cloud lockers are only excluded if they are for private uses, which would mean that enterprise and B2B cloud services or lockers which allow users to share content beyond their family circle (e.g. Dropbox) would still be covered. Code sharing platforms are only excluded if they are non-profit, which means that a platform such as  GitHub still falls under Article 13’s requirements. Similarly, online encyclopedia are only excluded if they are non-profit, which is known to be insufficient as, for example, the Swedish Supreme Court found Wikipedia to be a commercial entity.
  • The only way out is filtering: due to the direct liability mechanism put in place by the Article, the only way out for platforms is the use of automated technology to prevent the appearance of infringing content, through the use of upload filters.

Conclusion

This is the first time I feel sorry for the policy makers in this debate. Every week, my degree of frustration rises as I see the comments and concerns of civil society, academics, human rights organisations, start-ups, small publishers, individual creators, etc. ignored by the legislators involved in this process to the benefit of a few big cultural industry lobbies. But how bad must it feel when you are actually sitting at the table and the same happens to you? Will a Khrushchev arise and bang his shoe on the table to say ‘Enough is enough’? [Spoiler alert: it seems that ‘historical incident’ was partially fake news].

Picture source: The often used fake image of Khrushchev waving a shoe (above), and the original photo taken at the United Nations General Assembly, 23 September 1960, AP archives (below) – From Wikipedia