EP Julia Reda (Greens/EFA, Germany) published a blog post regarding the worrying developments in the Internal Market and Consumer Protection (IMCO) Committee Shadow meetings ahead of the Committee vote on 8 June.

The EPP Group Shadow Rapporteur, MEP Pascal Arimont (Belgium), is pushing a set of alternative compromise amendments on the press publishers’ right (Article 11) and the upload filter [PDF] (Article 13) and claiming that these represent the EPP Group’s position. His proposals are substantially different to those presented by his EPP colleague MEP Therese Comodini Cachia (Malta), who is the Rapporteur for the Legal Affairs (JURI) Committee, which leads on this file. Read the full story below.

What Can You Do to Help #FixCopyright?!

MEP Arimont tries to undermine the good work of the IMCO Committee Rapporteur, S&D MEP Catherine Stihler (UK), who is trying to reach a sensible and balanced compromise on both Articles which aims to take on board the concerns from all stakeholders. More specifically, MEP Stihler proposes to delete Article 11 and rewords Article 13 to ensure that it does not introduce a filtering obligation, and instead guarantees that the necessary safeguards and redress mechanism are in place when filters are applied on a voluntary basis.

MEP Stihler’s compromise is an improvement compared to the European Commission’s initial proposal for Article 13, but certainly not the preferred option for many stakeholders. This is evidenced by the fact that on 29 May 2017, over 60 civil society and trade associations – representing publishers, journalists, libraries, scientific and research institutions, consumers, digital rights groups, start-ups, technology businesses, educational institutions and creator representatives – co-signed an open letter [PDF] addressed to the Ministers attending the Competitiveness Council and European Parliament Rapporteur MEP Therese Comodini Cachia and her colleagues, calling upon the EU lawmakers to, amongst other things, delete Article 13!

The ‘alternative’ compromise amendments pushed by MEP Arimont are making the European Commission’s proposal, which was already flawed as you can see in our infographics on Article 11 [PDF] and Article 13 [PDF], even worse. His proposals would:

Article 13 (a.k.a. the ‘censorship filter’)

• Undermine the intermediary liability regime set in place by the E-Commerce Directive even more than the EC’s initial proposal.
• Expand the scope of Article 13 to information society services (ISS) that ‘provide access’ and not just ‘store’ user uploaded content. This means many more online service providers are caught by this article, but also many more types of content (including potentially livestreams).
• Falsely claims that filtering all user uploaded content against the catalogues provided by rightholders does “not lead to general obligation to monitor and find facts about the content”, and that therefore Article 13 “is fully compatible with Article 15 of Directive 2000/31/EC and the European Charter of Fundamental Rights”. This ignores established case law of the Court of Justice of the European Union (CJEU) (Scarlet/Sabam, Netlog/Sabam, Telekabel, and eBay/L’Oreal) and the fact that the prohibition of general monitoring is assessed in light of who is monitored not what. In other words, the fact that all uploaded content by all users is filtered is the relevant criteria here, not the fact that the filter only screens against copyrighted works flagged by rightholders.
• Exempt start-ups (e. micro-enterprises and small enterprises) that exist less than 5 years from filtering user uploaded content, as it would ‘constitute an insurmountable financial obstacle’. This proposal thus considers that the financial burden would suddenly become bearable after 5 years for small enterprises. A study found that “medium-sized companies engaged in file-hosting services paid between $10,000 and $25,000 a month in licensing fees alone for Audible Magic” which still seems a disproportionate burden regardless of the ‘age’ of a company, especially considering that the software provided by Audible Magic only filters a limited type of copyrighted works (audio and video).

Article 11 (press publishers’ right a.k.a. ‘ancillary copyright’)

• Extend the scope of the protection to not only cover digital uses, but also the use of printed press publication. Aside from the absurdity of this proposal, it clearly runs afoul of the mandatory exception for ‘press summaries’ under Article 10(1) of the Berne Convention.
• Claim to protect hyperlinks, but only as long as they “only contain information necessary to find and, or request the source’s contents”, which is open to interpretation and hence creates massive legal uncertainty.
• Extend the scope of the content protected to also cover scientific and academic journals. This proposal would thus imply that scientific publishers could ask a licence fee for publishing abstracts of papers, because if snippets are shown these should not “contain the key information which was to be conveyed by means of publication”.
• Extend the term of protection of the new neighbouring right granted to press publishers to 50 years, which would apply retroactively if one combines this duration with Article 18 of the proposal.

What others are saying

• BoingBoing – ACT NOW! In 9 days, the European Parliament could pass a truly terrible copyright expansion
• COMMUNIA – Worst version of the EU copyright reform proposal yet, thinly veiled as a “compromise”
• Creative Commons – Dozens of organizations call on European Parliament to redouble efforts for progressive copyright changes
• EBLIDA – One step forward, two steps backward in the European Parliament – this one’s completely wrongheaded!
• EDRi – ENDitorial: Consumer protection MEPs launch attack on consumers?
• EFF – While EU Copyright Protests Mount, the Proposals Get Even Worse
• Glyn Moody – Urgent: Please Write to MEPs to Stop Awful Copyright Proposals & Bad law, not bad luck: Article 13 of new EU Copyright Directive requires general upload filters
• Initiative Against an Ancillary Copyright (IGEL) – The “Alternative Compromise” Could Hardly be Worse
• OpenMedia – BREAKING: MEP Pascal Arimont’s all out attack on the right to link​