In our previous piece about a leaked European impact assessment on copyright, we described how the foreshadowed changes to European copyright law would place onerous new responsibilities on Internet platforms to scan your uploaded content on behalf of large entertainment companies. We also described how the changes would give news publishers a new, copyright-like veto power over the publications of snippets of text from news stories, even if these are merely by way of linking to the publisher's website.

Since then, there has been a further leak; this time, of the draft text of the Directive—that is, the new law—that the European Commission proposes to introduce to enact its plans. The new leak is mostly consistent with the impact assessment, but with a little more detail. In particular, we learn that the new veto power (or "link tax") for news publishers over the online publication of snippets would last for 20 years from the date of publication of the news story.

Although the elements of the new law that we highlighted in our previous post remain the headlines, there's lots more to the Commission's plans than this. Here we run down some of the other proposed changes, including new rules to facilitate access to television broadcasts online, new copyright exceptions for education, data mining, and archival, and new measures to broaden access to out of commerce works. All of these things sound good on the surface—but they come with some annoying limitations, as we'll see.

Broadcasting: No Digital Single Market for Video on Demand

Unlike in the United States where a work has a single copyright nationwide, in the European Union, copyright in the work exists separately in each of its 28 member states. This means that if a publisher or broadcaster wants to make a work available across Europe, it may need to negotiate 28 separate agreements with the copyright owner's various national representatives. In the case of broadcasting, this has been mitigated somewhat by a rule which said that if you are broadcasting from one country and the signal remains under your control up until the point where it is received in another country, you only need to license the material once, in its so-called "country of origin". There's also a separate but related rule which applies to retransmissions of broadcast streams by third parties—these too are allowed across European borders, subject to payment of a single statutory license fee that takes care of payments to copyright holders.

The problem is that these rules don't apply to broadcasts across the Internet, and they don't apply to "video on demand" services. The European Commission's proposed solution is to extend the "country of origin" rule to Internet broadcasts including catch-up TV, allowing the original broadcaster to make their broadcasts available in other European countries across the Internet. It is also proposed to extend the statutory license to third party Internet broadcasters, so that they too can legally stream continuous broadcast TV to other European countries across the Internet.

But this isn't a complete solution, for two reasons. First, the Internet's borders don't stop at Europe, and this proposal does nothing to make European television broadcasts available elsewhere in the world. Second, outside of an original broadcaster's own catch-up TV service, these measures don't allow third party providers such as Netflix to stream content on-demand across Europe. To achieve that, the Commission merely suggests hosting a "stakeholders' dialogue", along with a mechanism to overcome negotiation roadblocks, which is a fancy way of saying that they're not going to do anything much at all. As such, audiovisual content isn't likely to become any simpler to license for use online than it is now, which certainly doesn't fulfill promises of a digital single market for audiovisual content.

Copyright Exceptions and Licensing: No Fair Use

In the report that MEP Julia Reda drafted for the European Parliament last year, she suggested that Europe could do with new, standardized copyright exceptions covering topics such as freedom of panorama (the freedom to photograph public buildings and monuments), education and research, and e-book lending by libraries, as well as a general "fair use" style right for other purposes not caught by a more specific exception.

Well, the European Commission is having none of that. Instead, the only copyright exceptions proposed are for uses of text and data mining technologies by scientific research organizations, illustration for teaching in the online environment (including by distance education), and for the preservation (but not digital dissemination) of cultural heritage by libraries and archives. The exception covering illustration for teaching is even narrower than the others, because it can be limited where licensing is available; in other words, European countries that make illustration materials available to educators under a statutory or collective licensing scheme can simply opt out of the exception altogether.

The Commission is also proposing to make it easier for libraries and archives to digitize and disseminate out of commerce works, which are works that protected by copyright but which aren't commercially available. This isn't in the form of a copyright exception however, but rather some form of extended collective licensing, whereby license fees for the use of out of commerce works are paid to a collecting society, which would notionally be responsible for distributing that money to the author. Notably, there is no separate treatment for orphan works, which are works that are not only out of commerce, but whose author is also unknown or uncontactable. License fees must still be collected for all such works, even if there is no serious prospect of the author ever benefiting from them.

Fair Remuneration to Authors

Although most of the provisions in the new draft Directive are for the benefit of large publishing and entertainment companies, there is one new measure which would directly benefit authors. This would require firstly that "authors and performers receive on a regular basis… timely, adequate and sufficient information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights". Secondly, in cases where the remuneration that authors or performers receive from a publisher in exchange for their copyright "is disproportionately low compared to the subsequent revenues and benefits derived" from it, the Directive would allow them to claim additional payments from the publisher, with disputes to be settled by an alternative dispute resolution mechanism. The provision is clearly geared at preventing the exploitation of artists, particularly those in the early part of their careers, who may see little of the profits earned from the subsequent success of their work. However whether this kind of after-the-fact rewriting of their contracts with publishers is the best way to protect them from exploitation remains to be seen.

The only aspect of the European Commission's proposals that can be described as in any way ambitious are its worst parts; the link tax for the benefit of news publishers, and the new obligations on Internet platforms to monitor user uploaded content on behalf of copyright owners. All of the other ways in which European copyright law falls short of the expectations of consumers in the digital age are ignored: these include the lack of a broad and adaptable "fair use' right, the prevalent use of geoblocking to inhibit users from accessing licensed content across borders, and the imposition of unfair copyright levies in "exchange" for the right to make personal copies. (EDRi has a more complete list of Europe's copyright fails.)

Far from confronting the real problems of copyright in Europe, the draft Directive would actually create new problems, including new barriers for small and start-up user content platforms, and for those who use or disseminate online news. EFF will soon be joining like-minded colleagues in Europe to speak out against this unbalanced copyright reform, and send it back to the drawing board. Keep reading Deeplinks to find out how you can help.

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