New step for the Directive proposal of the European Parliament and of the Council on Copyright in the digital single market.

On September 12th, 2018, the European Parliament adopted a resolution approving a proposal for a Directive which must now be submitted to the Council and the Commission.

On September 12th, 2018, the European Parliament validated a proposal for a directive on copyright by a large majority (438 votes in favor, 226 against).¹

Background

The proposal for a European Copyright Directive, initiated by the European Commission in 2016, has been the subject of numerous debates and was rejected by the European Parliament on July 5th, 2018.

Its purpose is to better adapt existing texts applicable to copyright to the digital reality, in particular by seeking a better balance between the interests, on one hand, of authors and other rights holders, particularly in terms of remuneration, and, on the other hand, those of users aspiring to free access.

Two articles in the Directive Proposal were particularly controversial:

• Article 11 aims to establish a “neighboring right” in favor of press publishers to justify compensation awarded for the use of their online publications and
• Article 13 aims to compel major Internet players to negotiate agreements with right holders, for example by proposing automated filtering to ensure that copyright-protected content is not illegally disseminated on platforms.

The text validated on September 12th, 2018, by the European Parliament

A new article 11.

The European Parliament has validated Article 11 with four amendments:

1. Adopted Article 11 expressly states that the recognition of the rights of press publishers is intended to enable them to “benefit from fair and proportionate remuneration” for the digital use of their press publications “by information society service providers”.
2. The rights concerned shall expire five years after the publication of the press publication, calculated from January 1st of the civil year following publication (and not 20 years as originally proposed).
3. The adopted text of Article 11 expressly provides for an exception: the rights in question do not apply to mere hyperlinks accompanied by individual words.
4. Member States must also ensure that authors receive an appropriate share of the additional revenues that the press publishers receive from the information society service providers for the use of a press publication.

A new article 13.

The European Parliament has also amended Article 13, in a spirit of compromise, by relaxing the obligations of service provider platforms that provide the interface between right holders and users.

1. The text of Article 13 adopted by the European Parliament has notably removed the requirement to put in place automatic filtering mechanisms for posted content.
   
   The version submitted to the European Parliament stipulated that “information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with right holders, take measures to ensure the functioning of agreements concluded with right holders for the use of their works or other subject-matter”.
   
   The text submitted to Parliament even provided that such measures could be intended to “prevent the availability on their services of works or other subject-matter identified by right holders through the cooperation with the service providers”.
   
   The text adopted by the European Parliament on September 12th merely provides that “online content sharing service providers perform an act of communication to the public. They shall therefore conclude fair and appropriate licensing agreements with right holders”.
   
   The adopted text specifies that “licensing agreements which are concluded by online content sharing service providers with right holders for the acts of communication referred to in paragraph 1, shall cover the liability for works uploaded by the users of such online content sharing services in line with the terms and conditions set out in the licensing agreement, provided that such users do not act for commercial purposes”.

The adopted text also states that “Member States shall provide that where right holders do not wish to conclude licensing agreements, online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorized protected works or other subject matter are not available on their services. Cooperation between online content service providers and right holders shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright.”

2. The text of Article 13 adopted by the European Parliament is flexible and maintains an encouragement for dialogue.

It provides that “The Commission and the member States shall organize dialogues between stakeholders to harmonize and to define best practices and issue guidance to ensure the functioning of licensing agreements and on cooperation between online content sharing service providers and right holders for the use of their works or other subject matter.”

Parliament intends to give particular protection to SMEs as it provides that “when defining best practices, special account shall be taken of fundamental rights, the use of exceptions and limitations as well as ensuring that the burden on SMEs remains appropriate.”

The adopted text expressly specifies that the definition of good practices must ensure that “automated blocking of content is avoided.”

Now what will become for this directive proposal?

The saga isn’t over.

The text of the Directive validated by the European Parliament on September 12th, 2018, has not been definitively adopted. It must now be submitted to interinstitutional negotiations as part of the “institutional triangle” process, which should lead to a co-decision involving the European Commission, the Council of the European Union and the European Parliament.

A text resulting from negotiations between the European Commission and the Council of the European Union should be submitted to the European Parliament in spring 2019.

The subject is thus not yet closed.

It is possible that the aforementioned Articles 11 and 13, which have already been debated, will be subject to further amendments.

REGIMBEAU is following this debate closely.

¹ The text adopted by the European Parliament on September 12th, 2018, can be accessed via the link below: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2018-0337+0+DOC+XML+V0//EN