[A2k] Copyright in Europe: Minimal Reform to Avoid Crucial Questions

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Wed Dec 9 09:29:45 PST 2015


La Quadrature du Net – For immediate release

Permanent link: https://www.laquadrature.net/en/copyright-in-europe-minimal-reform-to-avoid-crucial-questions

Copyright in Europe: Minimal Reform to Avoid Crucial Questions

*** Paris, 9 December 2015 — Today, the European Commission has presented 
[its proposal][1] to reform copyright law in the European Union. This package 
includes a proposal for a regulation on portability of online services, as 
well as a communication to announcing future reforms to follow in 2016. The 
European Commission has thus confirmed that it does not wish to reopen the 
file on the InfoSoc directive [a], reflecting its reluctance and lack of 
ambition on this issue.***

After the adoption of the [Reda Report][2] on the 9 July, the European 
Commission has presented its strategy to reform copyright law, in order to 
update the 2001 directive to current digital practices. However, instead of 
reassessing the directive as a whole and introducing positive measures in 
order to balance copyright and [current usages][3], the Commission has 
preferred to break it up into smaller reforms, thus avoiding a rough but 
necessary debate on the current system as a whole and its evolution.

A first law has been published. It is a proposal for a regulation on the 
portability of online services. This [short text][4] goes in the right 
direction as it seeks to enable citizens, travelling within the EU, to access 
the online content legally available in their home country, via subscriptions 
or video-on-demand, for instance. However, this proposal — which simply 
corrects an aberration — completely lacks of ambition and does not provide 
any response to the real issues related to the difficulties to access 
content. It carefully avoids opening up the debate on the merits of multiple 
technological protection measures (such as geo-blocking, digital rights 
management — DRM — system, etc.).

The second text presented by the European Commission is a road-map of its 
future strategy, including in particular the wish to clarify and harmonise 
the regime of copyright exceptions:

  * Implement the Marrakesh Treaty, that aims at easing access to published 
works for visually impaired persons
  * Facilitating research work, by authorising statistical studies (text & 
data mining) on published works without having to ask for preliminary 
authorisation or having to pay for copyright
  * Establish a copyright exception for illustrations used in an educational 
  * Clarify the rules on freedom of panorama, an issue that raised a rough 
debate throughout the adoption of the Reda Report, and which will surely meet 
a strong opposition, especially from France

We can welcome the fact that the Commission keeps on including into the 
political agenda exceptions to copyright, even though these exceptions have 
been violently challenged by copyright holders during the debate on the Reda 
report. Nonetheless, these proposals remain poor compared with the resolution 
adopted in July by the European Parliament, which invited the Commission to 
act on a broader range of subjects (public domain, digital books in 

The European Commission has also suggested that it will work on usage fees 
for private copies. Even more worrisome, it seems ready to propose aggressive 
measures to protect copyright. Firstly, it suggests to take into account the 
ongoing consultation on platforms, in order to establish their degree of 
responsibility. In its communication, the Commission targeted in particular 
hyperlink aggregators, that make excerpts publicly available. This calls for 
a redefinition of the concepts of "public communication" and "make publicly 
available". Such measures would limit or stop some platforms from aggregating 
content without having to pay for copyright, which would greatly reduce 
access to culture and knowledge for people living in the European Union. In 
addition, Commissioner Oettinger has reportedly specified that it is not 
about establishing a "hyperlink tax", but the future of hyperlinks remains 
nonetheless uncertain.

Finally, this repressive trend also affects the illegal sharing of 
copyrighted material, in particular through the following measures:

  * "Follow the money" mechanism that forces involvement from all actors, 
specially financial players, in order to squeeze out revenues from websites 
providing excerpts publicly available without respecting copyright. The 
approach is seen as a self-regulation logic, in general through private 
agreements between governments, financial actors and hosting service 
providers without going before a judge. Besides the ineffectiveness of such 
measures because of the facility of bypassing them, it is regrettable that 
the judge is again circumvent, risking of undermining freedom of expression 
and restrict slightly more the access to culture.
  * "Notice and take down" and "take down and stay down" mechanisms. These 
two mechanisms aim at making hosting services responsible for copyright 
infringement, either by directly deleting content infringing copyright, after 
notification, or by placing upon hosting services a preventive control duty, 
in order to avoid uploading copyrighted content.

At the time the Reda report was published, [we highlighted][5] that despite 
its interesting approach, the report could have gone further in its proposals 
for the recognition of new cultural rights, including the legalisation of the 
non-market sharing of cultural works between individuals. Now, the European 
Commission blatantly shows its will to legislate by taking small and 
dispersed steps, without asking the right questions about the rigidity and 
inefficiency of the current system. The repressive measures are in line with 
what La Quadrature has been denouncing for months: the accountability of 
intermediaries and the eviction of the judge, which are often ineffective and 
undermine freedom of expression. It is urgent to review all these proposals 
to better adapt legislation to usages and stop giving businesses more power 
over our civil liberties.

* References* :

   [a] [Directive 2001/29/CE][6] of the European Parliament and of the 
Council of 22 May 2001 on the harmonisation of certain aspects of copyright 
and related rights in the information society

   [1]: http://europa.eu/rapid/press-release_IP-15-6261_en.htm
   [2]: https://www.laquadrature.net/en/reda-report-watch-out-for-last-minute-amendments
   [3]: https://www.laquadrature.net/en/members-of-the-european-parliament-must-support-the-reda-report-on-copyright-reform
   [4]: http://ec.europa.eu/newsroom/dae/document.cfm?action=display&doc_id=12524
   [5]: https://www.laquadrature.net/en/copyright-reform-the-european-parliament-must-follow-the-reda-report
   [6]: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001L0029

** About La Quadrature du Net **

La Quadrature du Net is an advocacy group that defends the rights and freedoms of citizens on the Internet. More specifically, it advocates for the adaptation of French and European legislations to respect the founding principles of the Internet, most notably the free circulation of knowledge. 

In addition to its advocacy work, the group also aims to foster a better understanding of legislative processes among citizens. Through specific and pertinent information and tools, La Quadrature du Net hopes to encourage citizens' participation in the public debate on rights and freedoms in the digital age.

La Quadrature du Net is supported by French, European and international NGOs including the Electronic Frontier Foundation, the Open Society Institute and Privacy International.

List of supporting organisations: https://www.laquadrature.net/en/they-support-la-quadrature-du-net

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