European Copyright Reform: How Did We Get Here & What Happens Next?

There has been significant media coverage of the vote in the European Parliament last week on a revised Copyright Directive.

Off the back of the mixed results, we (LIBER’s Copyright & Legal Matters Working Group) thought it appropriate to summarise where we stand in the process leading up to a new European Directive on copyright law. If you have not already seen LIBER’s press release on the vote, please find it here.

How Did We Get Here?

The European Commission made a proposal for a new directive in September 2016 entitled ‘Copyright in the Digital Single Market’. This followed a protracted period of public consultation on updating existing European copyright laws. Since then the European Council (the governments of the EU’s 28 member states) and the relevant committees in the European Parliament have been meeting  to make proposed amendments to the Commission’s original draft directive.

In May this year, the European Council’s permanent representative committee (Coreper) agreed their amendments to the Commission’s draft directive. Similarly, on 29 June 2018 the European Parliament’s lead committee — the Legal Affairs Committee (JURI) — agreed amendments to the Commission’s proposal in consultation with three other parliamentary committees: LIBE (Committee on Civil Liberties, Justice and Home Affairs), IMCO (Committee on the Internal Market and Consumer Protection) and ITRE (Committee on Industry, Research and Energy).

Before progressing to the next stage known as trilogue, the European Parliament had to approve and adopt the draft proposal agreed upon by the JURI committee as the formal Parliamentary negotiating position. To many people’s surprise — it is believed for only the second time ever — in July this year the Parliament rejected the committee’s proposal.

This was primarily a response to the voice of European citizens who rang, emailed and visited in significant numbers their MEPs to ask them to oppose Article 13.  The rather long titled Article 13 — Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users — is aimed at large consumer-focussed platforms like YouTube. The proposed directive creates an overall obligation on the hosts of such services, where no licences are in place, to monitor what content is being uploaded to their platforms, in order to remove any infringing materials.

Pithily summarising the view of many critics of Article 13 that this would lead to further online filtering, Julia Reda (Pirate Party MEP and shadow rapporteur for the Green Party on this brief in the JURI committee) wrote:

There are only two ways to do this: (a) hire an army of trained monkeys to look at every individual user upload and compare it manually to the rightsholder information or (b) install upload filters. 

In reaction to the groundswell of activity by people worried about the effect of filtering and monitoring of large and popular platforms like YouTube — as well as Italy’s Wikipedia shutting down in protest — MEPs voted on 5 July 2018 in full plenary of the European Parliament to reject the JURI proposal by a margin of 318-278. By this rejection, they essentially decided that they would like to further discuss and potentially amend the proposed JURI proposal.

In early September, MEPs had the opportunity to place amendments to the JURI proposal. LIBER alongside organisations like Science Europe, IFLA, EBLIDA, eIFL, COAR, SPARC Europe and the European University Association worked with MEPs sympathetic to research and educational bodies. This resulted in a couple of pro-digital innovation and library-focussed amendments being placed. Of particular note perhaps were the amendments placed by a Dutch MEP (Marietje Schaake) which would have created a mandatory exception allowing both businesses and educational / research organisations to text and data mine.

Unfortunately in terms of text and data mining, on 12 September parliamentarians voted to support the original JURI proposals. This will frustrate the Knowledge Transfer agenda as well as the Commission’s €20 billion investment in AI as it only creates a limited optional exception for commercial entities which Member States can choose to ignore.

The proposal however does also contain very positive proposals on cross-border digital preservation, distance learning, and the mass digitisation of in copyright and out of commerce works by libraries, museums and other educational bodies. With last Wednesday’s vote now complete, the First Reading process of the directive for the European Parliament is complete.

Where Do We Go From Here?

The next step on the path to a new copyright directive is known as trilogue: negotiations involving representatives from the Commission, Council and the European Parliament. These three bodies will meet to try and agree on a compromise text that reflects the amendments as now proposed by the European Parliament and Council.

If they can agree a compromise text, this text must then be adopted by the Parliament in full plenary in a second reading vote. Similarly Council must agree to it in a vote. Depending on what happens in trilogue, the second vote in full plenary of the European Parliament may or may not be a given, particularly if we see ongoing concern from the public over filtering and monitoring obligations in the draft directive.

However, assuming adoption by both the Parliament and the Council, the directive will  then be sent to the President of the Parliament and President of the Council (as well as Secretary Generals of Council and Parliament) for signature. Once this is completed the jointly agreed Directive is sent for publication in the Official Journal of the European Union.

No legislation can pass without the agreement of both Parliament and Council. If a compromise solution cannot be agreed on, or if Parliament and Council reject the compromise text, then further trilogue between the institutions can be expected. If no compromise can be achieved then either the more controversial elements are likely to be removed, or only those less controversial articles which remain will form part of the directive. In the highly unlikely event that no agreement can be made on at least some of the articles in the directive, the whole proposed directive will likely fall.

Given that the elections for the European Parliament will take place in May 2019, the pressure is on to try and complete the revised Copyright Directive ahead of the end of Parliament’s current term on 18 April 2019.

It goes without saying that LIBER and the other library, education and research groups with which it works, will continue to represent the best interests of research libraries, and the people who use them from now until the end of the process in spring 2019.