Sunday, 9 December 2018

Bulgarian presidency worse than Estonian on ©…or is the EC the ultimate puppet master?

The Bulgarian Council Presidency’s discussion paper [PDF] on Articles 11 and 13, which is being circulated to the Member State delegations in light of the 12 February meeting of the Council Intellectual Property Working Party (see agenda here), is public on the Council website.

And guess what: it is bad!

Article 11 – Press Publishers’ Right: let us just ignore option B (presumption) even though half of the Member States want it

The Bulgarian [BG] Council Presidency considers that the Committee of the Permanent Representatives (COREPER) mandated the Council Intellectual Property Working Party to explore some amendments to Option A – a neighbouring right, whilst keeping Option B – a presumption of rights – on the table.

The latter however is done in such a shameful off hand manner that even POLITICO Tech noticed in their coverage of the document that: “The compromise [Option A] was put forth despite almost half of EU countries voicing opposition to the right”.

This lack of consideration of the views around the table and the fact that no guidance was given at COREPER to go down an Option A route is honestly shocking, and one can only hope Member States do not let themselves be steam rolled in such a manner.

Sidelining Option B – the presumption of rights – in such a blatant manner is quite a harsh move, seeing that several Member States consider this to be a good way forward. The push for option A is even less justified when one takes into account that the recently uncovered 2016 study of the EC’s Joint Research Centre (JRC) demonstrates that Option A does not work: “the German and Spanish cases show that the law can create a right but market forces have valued this right at a zero price” (p. 25). This evidence comes on top of a more recently published European Parliament study that comes to a similar conclusion: “the evidence does not support a new right, it does support the introduction of a presumption” (p. 38).

Looking specifically at Option A, the following elements are considered key by the Bulgarians (aka the European Commission?):

  • the application of the criterion of size/length to grant protection to extracts of press publications;
  • whether uses performed by individual users should be covered or not by the protection granted to press publishers; and
  • the term of protection of the rights provided to press publishers.

The proposed amendments however go beyond these elements, as outlined below regarding the (lack of) need for originality, even though that element was still very much under discussion at previous meetings of Council.

Uses of extracts of press publications by service providers: Snippets, hyperlinks…and how short is short? (2nd sub-paragraph of Article 11 & Recital 34a [new])

The Presidency wants to acknowledge the increasingly important economic value of such uses and clarify that ‘should have the right to authorise or prohibit such uses of extracts’: the fact that this should be a right could hence mean that the use of technologies that enable this form of control (robots.txt and more advanced) could be deemed insufficient even though in reality they enable exactly that.

In doing so, it (1) clarifies that uses of extracts limited to individual words or very short excerpts of text are exempted [Note: if the use of individual generic words had ever been protected by copyright, all of us could have stopped posting online a long time ago] and (2) it removes the fact that the extracts should meet the originality criteria, which is the foundation for copyright. The efforts of the Presidency to exempt very short excerpts could be seen as positive, however, in practice this could lead to fragmentation across the EU, as the length of what ‘a very short except’ is will have to be set by the courts, and URLs could still be covered.

In this context, it should be noted that the Copyright Arbitration Board of the German Patent and Trade Mark Office (DPMA) recommended that snippets can comprise exactly 7 words, and anything exceeding those 7 words would require a licence. The general feeling is that the Bulgarians have drafted amendments that suit the existing ‘German’ solution.

Reduce the scope of users affected by the protection: wishful thinking but what is the reality behind it? (1st sub-paragraph of Article 11(1) and Recitals 31, 32 and 34)

The Presidency suggests to limit the exclusive right to authorise or prohibit acts of reproduction and making available to the public of press publications performed by service providers, regarding digital uses. This is an attempt to make sure that individual users are not affected, although obviously the devil will be in the detail. If one looks at Article 13 where online platforms are deemed to be the ones ‘using’ the content uploaded by their users, things get a bit more complicated, especially considering the censorship filter of Article 13 must cover the content protected by Article 11.

Reduction of the term of protection of 20 years: and suddenly, they become too shy to set a term? (Article 11(4))

The Presidency notes that most delegations have expressed support for a reduction. However, views still diverge on how long the term of protection should be, therefore no explicit protection term is being proposed for the time being. But then again, what term is justified for a measure that makes no sense ?

In summary

One could think the Bulgarians have pretty much done the bidding of the publishers’ lobby as set out in their different letters and public statements:

  • Ensure that the press publisher’s right is a ‘prohibition right’. This is exactly how Thomas Höppner, a Professor of commercial law and IT law, and the lawyer for German publishers in several court cases against Facebook and Google, put it at a European Parliament hearing: ‘This is a prohibition right. It is a right that makes sure there are not platforms coming up everywhere and anywhere that take advantage of content that has been published and make their business out of it. The first and foremost goal is to prevent these exploiting businesses – simply not have them.’ (Watch the video recording )
  • Ensure the right covers everything, not just original content (there again, the Höppner intervention in the EP is crystal clear).
  • Ensure hyperlinks are covered at least potentially under the ‘communication to the public’ criteria, which creates sufficient legal uncertainty to ensure service providers will have to consider hyperlinks as a risk. This fits neatly in the open letter messages published in Le Monde (behind a paywall, ô irony) and in which large news agencies stated ‘They offer internet users the work done by others, the news media, by freely publishing hypertext links to their stories. […] Solutions must be found. […] We strongly urge our governments, the European parliament and the commission to proceed with this directive’.

Article 13 – Upload Filter: Let’s just decide that the Ecommerce Directive and Charter do not apply when copyright is at stake

The Bulgarian Council Presidency wants to “look into the main elements of a possible compromise”, but remarks that “the option of going back towards the approach taken in the Commission proposal remains on the table also as a possible compromise”.

So-called ‘Clarification on the communication to the public and definition of content sharing services’ approach: how to deep dive into a puddle of mud and hope you’ll see through it

The Presidency claims that such a clarification could be achieved “through the combination of a definition in Article 2 of ‘online content sharing service provider’ and the use of certain criteria for communication to the public based on the case law of the CJEU in Article 13”. In their view, “using the definition of ‘online content sharing service’ would allow targeting in a clearer way the online services covered, while not affecting the notion of communication to the public”. In this context, “the clarifications as to which services are not targeted by the proposal could be left in a recital”, a solution which creates absolutely no legal certainty as recitals are non-binding and are simply there to guide courts if they feel like it. Member State delegations are asked to indicate whether they consider this approach appropriate.

Liability for service providers that communicate to the public and possible link to measures (possible limitation of liability under certain conditions): bye bye e-Commerce Directive and Charter!

The Bulgarians ask the EU Member State delegations “to indicate whether in cases of services which perform an act of communication to the public and are excluded from Article 14 e-Commerce Directive (ECD), a targeted limitation of liability should be provided for and whether the drafting proposal below goes in the right direction or should a different approach be taken and if yes, which one”. The Presidency clearly states that Article 14 of the ECD does not apply when a communication to the public is done, as opposed to the initial text of the EC which at least kept the caveat ‘unless they are eligible for the liability exemption provided in Article 14’, as a way of not fully closing the door. Well, the Bulgarian text slams the door on the e-commerce Directive and states the liability covers both acts of communication to the public and acts of making available.

Measures to be undertaken: if (b) is notice and stay down, what is (a)…surely not a censorship filter?

The Presidency notes that if the obligation of taking measures is maintained that then the text based on the previous discussions and consolidated versions would be maintained, subject to further adaptations and a final compromise. Please note that the wording of the BG Council Presidency hints at the fact that services are required to take specific measures, whilst the European Commission keeps on claiming that that services “are not under an obligation to apply specific measures of monitoring” – read the EC’s reply [PDF] to the October 2016 open letter from over 50 human rights and media freedom organisations. The enumeration of 2 scenarios in paragraph 1a of Article 13 seems to also confirm the necessity to (a) implement a measure that ‘prevents the availability’ and (b) implement a measure that handles notice and stay down for the content that slipped through the measures in scenario (a). One can hardly think of anything but a filter under scenario (a).

Limitation of liability impact on users: cute but probably not worth the paper it’s written on

The text proposed in the latest consolidated version would be maintained, as the Member State delegations seems to agree that users should be covered by licences between rightholders and services. This feels however more like a feel good measure rather than something that could effectively work from a contractual law point of view. It also means users are not in the clear absent licensing agreements.

Knowledge: from ‘knowledge of an infringement’ to ‘you should have known better’

The explanatory text states that “the notion of knowledge, which remains in Article 13, could be further specified in a recital if necessary”. It should be noted that the knowledge criteria contained in paragraph 1 of Article 13 covers ‘full knowledge of the consequences of its action’, and not as per usual the knowledge of the fact that content is infringing copyright.

In summary

The direction proposed by the Bulgarian Presidency looks oddly similar to the requests issued by the rightholders’ lobby, such as Gesac, in their umptiest recent petition site, where they ask policy makers to:

  • ‘clarify that UUC [user uploaded content] platforms like YouTube are involved in reproducing and making our works available under copyright laws;
  • ensure that the safe harbour non-liability regime does not apply to them as it is meant for technical intermediaries only’.

Guess what: you can stop the petition, the Bulgarians (and the European Commission) have heard you loud and clear…and who cares about the collateral damage to the Internet as a whole?

As a reminder on that collateral damage, let’s recall that over 50 human rights and media freedom organisations expressed their concerns to the EU legislators in an open letter dating from October 2016. The letter warns for the fact that Article 13 “would violate the freedom of expression set out in (…) the Charter of Fundamental Rights” and “provoke such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications”.

Conclusion: The Bulgarians are even more willing than the previous presidency to do the European Commission’s bidding (or is it France’s?)

At some point one wonders to what extent Council presidencies can just ignore half of the Member States in the room and go ahead with whatever script they were given by the European Commission, supported by a few big Member States and rightholder lobbies? Shouldn’t there at least be some form of ‘pretending’ that democracy is at play here?

The approach taken here by the Bulgarians seems to indicate that ‘no’ is the answer…something citizens and governments should not consider acceptable.

Caroline is coordinator of the Copyright 4 Creativity (C4C) coalition. She is also the founder and Managing Director of N-square Consulting (N²), a Brussels-based public affairs firm. She is the author of ‘iLobby.eu: Survival Guide to EU Lobbying, Including the Use of Social Media’. [All content from this author is made available under a CC BY 4.0 license]