A new voting on the Directive on Copyright in the Digital Single Market is to take place on 12th September at the European Parliament.
The re-vote is necessitated by the fact that a few months ago the vote was postponed due to contradictions surrounding two of the provisions. AEJ-Bulgaria contacted the organization “Digital Republic”, which prepared an explanatory publication on the subject.
AEJ – Bulgaria is well aware of both the current problems that right-holders encounter when publishing content online and the need for better control mechanisms and legal rights enforcement in case of infringement. At the same time, however, the afore-mentioned contradicting provisions create problems of their own; especially when it comes to the free exchange of information, which is the foundation of the journalistic profession. For this reason AEJ- Bulgaria is against the rushed acceptance of the directive’s texts without clearing out the contradictory passages.
We present to your attention the position of “Digital Republic”- the first in a series of publications on the topic.
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In the last months public attention has been increasingly focused on the debate surrounding the forthcoming legal amendments to the copyright law in the EU’s digital single market.
The initial aim of the ongoing reform was to modernize the legal framework that governs copyright in Europe. The greater part of the current regulation on copyright was created in its bulk during the XIX and XX century to respond to analogue technologies – hence it is becoming more and more difficult to adapt it to the digital era and especially to challenges arising from the use of the Internet. Issues governing these rights are becoming more and more difficult to understand by users as the greater part of their online behavior does in fact constitute infringement on someone else’s rights – even if this behavior does not amount to piracy or hurt the right-holders ‘interests. On the other hand, however, the right-holders themselves are finding it difficult to keep track of and control the spread of their authored content online. Adequate mechanisms to guarantee both effective access to information and copyright application are lacking. Therefore, it is of paramount importance that the copyright legal framework is brought up-to-date and simplified in order to be able to respond to the realities of the Internet use and to help distinguish between the author and the user in an online context.
The other main goal that the European Union had put on its agenda was to harmonize the copyright legislation across the EU territory in order to create a single digital market. As of right now, the copyright legal framework of the 28 EU member states is different, which makes the functioning of artistic industries and digital businesses quite hard in the European context.
Regrettably, during the course of the legal process the initial, ambitious goals of the reform were met with rather timid and ineffective response. For instance, at the European level there are still no harmonized rules and conditions that explicitly state if and how to cite someone else’s work – a foundation of the journalistic profession. What is more, the attempts to harmonize the use of copyright works for educational and scientific purposes are rather inadequate.
At the same time, however, the European lawmaker uses this initiative by rushing to solve the problems of few, affected by the rise of the Internet, industries. Two of the provisions of the draft directive caused a significant stir and became the cause for heated debate between the “great powers” of the said affected industries and in doing so raised serious concerns among the civil society organizations.
Article 11 –news publishers new related right
One of this divisive provisions is the implementation of a new related right for news publishers, whose aim is to allow online newspapers to collect licensing fees from both Internet giants and news aggregators whenever a publication is cited.
The brainchild of this provision is considered to be the uncrowned king of the German media industry – Axel Springer – for whom many, big publishing houses are lobbying. On the other side of the debate are, naturally, the big online platforms. Civil society organizations have called the new right a “link tax” and have expressed serious concerns on the effect it will have on online citing for personal and journalistic purposes.
Taking into consideration what the European civil society organizations believe to be the impact of article 11 on the spread of information, access to news, possibility to cite different journalistic articles, and the fight against fake news, we consider their concerns completely valid.
Despite the complete failure to meet its initial goals, the new related right has already been implemented at the national legislatures of Spain and Germany. There the new right has not led to increase in financial revenues for journalists despite the millions spent on lawsuits. In the meantime, the main culprit for its implementation – the Internet giant Google – has managed to acquire free license to use media publications and therefore has gained even greater advantage over its competition.
It is of crucial importance that the so necessary legal measures the govern quality journalism are not taken hastily and based on emotional arguments, but are rather well thought-out and taken in consideration of all parties, especially those who might be negatively affected from it.
Article 13 – responsibility of Internet intermediaries to filter user
Article 13 would oblige service providers that store and provide access to large amounts of works uploaded by users to pay more royalties to rights holders. The article stems from the music industry and has also managed to lead to a clash between two lobbying groups – that of the big, traditional creators/owners of copyrigh and the one of the Internet giants.
What is the essence of this article? In effect, it alters the basic principles of responsibility that online platforms and other online service providers have to rights holders. Up until now, as a result of an e-commerce directive, the so-called ISPs have been prohibited from monitoring the entire user content that goes through them. The idea of this ban was to guarantee the neutrality of the Internet provider in maintaining the online communication infrastructure between users.
The text of article 13 aims to change this by obliging user content platforms to monitor the entire user content and to strictly uphold owners’ copyrights. In case of an infringement of those rights, the platform bears full responsibility.
The problems that rights holders encounter whenever their content is shared online coupled with the need for better control and more effective upholding of the existing legal framework in cases of infringement of those rights is something that is well understood.
However, just like civil society groups, we too are concerned about the proposed mechanism it has the potential alter the way the Internet functions – namely by forcing the neutral platforms to act like medias, to adopt an editing role and to monitor all content and prevent anything that might threaten the rights holders’ copyrights.
Taking into account the huge volume of information that goes through online providers, they will be forced to take strict measures to enforce the new law, which would lead to the blocking of many user posts that otherwise wouldn’t have been blocked (for instance in situations when the use of someone else’s work is legal – in citations, reviews, for educational and scientific purposes and so on). It can also negatively impact the spread of news, reports, and investigative journalism.
What is more, the content of the directive is so widely formulated that it can easily be applied to forums, libraries, online repositories, software repositories like GitHub and projects like Wikipedia. The expenses and necessary resources for installing all content filtering systems are beyond the means of smaller players on the market however and can lead to the creation of a big providers monopoly where media pluralism is adversely affected.
The above mentioned provisions are to me voted at the European Parliament on the 12th September 2018. During this period AEJ – Bulgaria will present two other publications that shed even more light on the two main contentious issues of the directive.