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On 16 April, Intellectual Property Attachés are being summoned by the Bulgarian Council Presidency to iron out the remaining wrinkles around the proposed Directive on Copyright in the Digital Single Market. This meeting needs to clear the path for the Bulgarian copyright steamroller, as the Presidency is pushing for a political decision at 27 April meeting of the Committee of the Permanent Representatives of the Governments of the Member States to the European Union (COREPER).

In order to smoothen the process during this 16 April meeting, the Presidency published [PDF] a set of questions late last Thursday to guide the discussions, and last Friday also put out its latest consolidated compromise proposal [PDF].

The questions put forward only cover what the Presidency considers to be the remaining issues that need to be clarified ahead of the COREPER meeting, namely: Articles 3a (the optional text and data mining [TDM] exception), 11 (the press publishers’ right) and 13 (the upload filter).

In our view, the questions are (again) very biased, and do not foster a true in-depth discussion on these Articles. Instead, the Presidency wants to limit any final changes before the COREPER meeting to merely cosmetic modifications.

Why the sudden rush: Is Council so frantic to beat the Parliament in being the 1st one to have a position?

All this could give the impression that the Presidency is just doing its utter best to move forward on the file. However, they’re trying so hard, that they’re actually taking (some of) the other Member States by surprise with their eager to please the European Commission and France (now also joined by Germany) in adopting this reform as quickly as possible.

Especially, if one takes in to account the latest delay in the European Parliament until 20-21 June, as the Legal Affairs (JURI) Committee considers more time is needed to (at least try to) achieve a sensible outcome.

On 11 April, the Member States were still discussing the reform at the level of the Council Intellectual Property Working Party. However, apparently the Presidency then already started creating a sense of urgency by refusing to engage into proper paragraph-by-paragraph discussions.

By now shifting the follow-up discussion to the level of the Attachés, they’re actually making sure they kill any meaningful debate, which they seem to consider to be too time-consuming. For the Working Party meetings, the Member States can recoup the costs of bringing along their national experts from the relevant ministries, whilst in the case of the Attaché meetings, they need to bear these costs themselves if they want to have their expert around the table. This inadvertently puts smaller Member States with more budget constraints at an automatic disadvantage, and allows the Presidency to silence some of them.

This 27 April COREPER meeting could then result in further political discussions at the upcoming 28-29 May Competitiveness Council.

Staying Calm During an Emergency Can Save Lives

We are concerned that this Bulgarian steamrolling exercise completely neglects the fact that no sensible compromise has been reached yet in the Council, and that the comments by a broad spectrum of European stakeholders and experts (see the November 2017 open letter by over 80 organisations, see the October 2017 open letter by over 50 NGOs representing human rights and media freedom, and the October 2017 recommendation co-signed by 56 respected academics) are just blatantly being ignored.

Staying calm during an emergency can save lives. In this case, as mentioned above, there is no actual emergency, but even if there was such a feeling, then it would be still better to give further reflection to the proposals on the tables before moving towards the emergency exit for a crash landing. This could potentially save citizens, creators, educators, academics, cultural heritage professionals, software developers, startups and many others from being hampered in their daily life in the future by a skewed copyright regime that will have many unintended but damaging side effects.

Unintended consequences which could impede on their fundamental rights and on their possibilities to create and innovate, all of this to the detriment of the EU’s leadership role on fundamental rights and the EU’s economic potential.

Conclusion: Quality Must Prevail Over Haste

The Bulgarian Presidency has now clearly proved that it can plough through the Council process, whilst ignoring Member States with different views than those put forward by the European Commission, a few big Member States and the rightholders’ lobbies.

Now, it’s time for those Member States that have been pushed aside in the process to stand-up and stop this rampage whilst they still can. As the Attaché of the Czech Republic, Miroslav Hrstka, puts it: «Quality must prevail over haste!».

#copyright working w/e ahead of MSs – BG PRES just published the latest version of compromise on the copyright Directive. Next discussion already on Monday morning. Hopefully MSs will be given enough time to analyze it – quality must prevail over haste!https://t.co/iDZjjyGXu2

— Miroslav Hrstka (@mir_hrstka) April 13, 2018