Digital Single Market Directive - the European Parliament lays a Curate’s Egg13 September 2018
13 September 2018
Chair, EBLIDA Expert Group on Information Law
Yesterday, after two years deliberation, the European Parliament voted on its amendments to the draft Directive on Copyright in the Digital Single Market. This vote establishes the Parliament’s position as the draft Directive enters into trilogue negotiations between representatives of the Parliament, the Commission and the Council of Ministers before returning to Parliament for final adoption.
Articles 4, 5, 7-9
An important and very positive outcome is that lobbying by a coalition of pan-European library bodies comprising EBLIDA, IFLA, LIBER, Public Libraries 2020, together with Europeana, successfully brought about significant amelioration by Parliament of the Commission’s draft text concerning online teaching and learning (Article 4), cross-border and digital preservation (Article 5) and mass digitisation of out of commerce works (Articles 7-9). These articles as adopted by Parliament are actually quite good for libraries, archives, educational establishments and cultural heritage institutions.
The Parliament’s amended draft Directive still contains a mandatory exception for text and data mining (TDM) (Article 3) permits research organisations, the definition of which (Article 2) has been expanded to include universities and their libraries, to undertake TDM on materials to which they have lawful access. Note also that Parliament’s version permits Member States to continue to provide an exception for TDM under the scientific research exception in the Information Society Directive 2001 Article 5(3)(a). Moreover, in Parliament’s version any contractual provisions contrary to the TDM exception continue to be unenforceable. Additionally, Parliament has provided that educational establishments and cultural heritage institutions conducting scientific research can use TDM provided that access to the results of the scientific research “cannot be enjoyed on a preferential basis by an undertaking exercising a decisive influence upon such organisations”. The reproductions and extractions made for TDM must be securely stored, e.g. by “trusted bodies”. All of the above is good as far as it goes and better than the Commission’s draft.
However, the general public and Europe’s businesses, including research-based companies, innovative tech start-ups and university research spin-offs, are excluded from the TDM exception unless their Member State chooses to introduce the optional exception in Parliament’s new Article 3a, which is without prejudice to the provisions of Article 3 and is not limited to research organisations, universities and their libraries.The scope of the optional exception is limited to materials to which the miner has lawful access “provided that the use of works and other subject matter referred to therein has not been expressly reserved by their rightholders”. However, the optional nature of Article 3a means it risks not applying across the Single Market, so European cross-sectoral research collaborations will be thwarted with difficulties. As both the Parliament and the Council versions of Article 3a are very similar, if it proceeds it is likely to remain an optional exception, creating potentially 27 different applications within the EU. A bullet in the foot for Europe: the Americans, the Japanese and the South Koreans will continue to benefit from their freedom to use TDM while Europe will limp behind.
The Commission’s innocuous proposal for (Article 6), that would have extended the use of Member State appeal systems for technological protection measures (TPMs) to digital works and databases for which the licence was negotiated, was completely repurposed by Parliament to prevent institutions from employing more than one of this Directive’s exceptions for TDM, online teaching and learning, or preservation with regard to a work. This means that if you preserve it you can’t use it for teaching or TDM, if you use it for TDM you can’t use it for online teaching or preserve it, and so forth. This is a direct attempt to nullify the European Court of Justice’s ruling in Eugen Ulmer v TU Darmstadt (case C-117/13) which ruling was incorporated into Poland’s updated copyright legislation in 2015.
The Parliament voted in favour of a new five year ancillary right for press publishers and news agencies (Article 11) with regard to hyperlinks on third party platforms of “information society service providers” as defined by the E-Commerce Directive. The Commission had wanted 20 years duration, so Parliament’s version is a significant improvement. Library and information services may not be able to include headlines with links to news articles on their platforms because only “individual words” (whatever that means) can be used. Parliament’s version does ensure that this does not apply to “legitimate private and non-commercial use of press publications by individual users”. Fortunately, during the committee stage, the library lobby was able to see off a proposal to extend this right to academic publishers. However, this new neighbouring right is a threat to maintaining an informed and literate society because it risks limiting institutional access to the online public record of news reporting (the latter itself undertaken with the help of a copyright exception) of both current and past events. It could well encourage the greater proliferation of so-called “fake news” via social media. Given the experience of Spain and Germany, it may be an own goal unlikely to generate much revenue to news publishers for the use of hyperlinks by third party platforms.
The biggest political hot potato was Parliament’s support for the introduction of upload filters for user generated content (Article 13). The Commission’s intention was to prevent copyright infringing content being communicated to the public by user uploads to platforms such as YouTube, etc. There are deep concerns from civil society bodies about internet censorship and undue constraints on free expression, since uploaded content, whether text, images, film or sound, will have to be pre-vetted by the host platforms and they are using far from perfect algorithms which, so far with regard to other allegedly illegal content, have not proved nuanced or intelligent enough to correctly assess allegedly offending material in context.
However, university and research libraries and the Open Access movement have their own concerns about the impact of Article 13 on Green Open Access repositories. The Commission’s version applies to “information society service providers” as defined by various earlier Directives which may well have excluded research repositories, although as this was untested it was uncertain. Parliament’s version applies to “online content sharing service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users”.
Parliament’s Article 2 defines “online content sharing service provider” as “a provider of an information society service one of the main purposes of which is to store and give access to the public to a significant amount of copyright protected works or other protected subject-matter uploaded by its users, which the service optimises and promotes for profit making purposes”, BUT goes on to say “services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all right holders concerned (my italics), such as educational or scientific repositories, shall not be considered online content sharing service providers within the meaning of this Directive.” This means that, if adopted, repositories will have to formally apply measures to make sure all rights are cleared and licences obtained before permitting uploads - a significant drain on resources that will increase the costs of research.
Good in parts, like all legislation this outcome from Parliament, after two years of scrutiny, is a “Curate’s Egg” indeed.
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