Waiting For The Blessing Of The Eu Directive On Copyright Inwards The Digital Unmarried Market

By Eleonora Rosati writing on the IPKat

Roman Kats

A petty over a twelvemonth agone the European Commission released its proposal for a Directive on copyright inwards the Digital Single Market [Katposts here], which is currently existence discussed inwards the European Parliament.

The content of the proposed directive has attracted substantial commentary, peculiarly with regard to provisions intended to innovate a novel neighbouring correct for press publishers (Article 11) too obligations for hosting providers inwards the context of what has come upwardly to hold upwardly known every bit the ‘value gap’ work (Article 13).

Last calendar week Professor Lionel Bently (University of Cambridge) too Associate Professor Valeria Falce (Università Europea di Roma) were inwards Rome to beak over the content of the proposed directive.

Here’s what they think:

“After a tortuous journeying too conflicting opinions with the European Union institutions (the Commission, the Committees of the European Parliament, the Council), the blessing of the draft Directive on copyright inwards the Digital Single Market is unopen to the corner.

The goals are sound: to conform copyright to the digital ecosystem too the challenges of novel technologies; to strengthen the effectiveness of rights too to promote an enriched human relationship betwixt the authors/publishers too the full general public; to safeguard a "free too pluralistic press" too to guarantee "quality journalism too slowly access to information for all".

The key challenges are shared past times the dissimilar parties: addressing the radical changes brought past times the digital economy, which overwhelm the publishing manufacture too requiring adaptation of traditional line of piece of work organisation models; facilitating circulation of industrial plant too the licensing system; too allowing publishers too authors to participate with “equal arms” inwards the value chain.

The proposed solutions to these problems are nevertheless controversial, every bit the Commission, Council too Parliament swing betwixt compromise attempts too precipitous reevaluations.

Lionel Bently

The divisions are close pronounced inwards relation to 2 provisions of the proposed Directive: i) Article eleven — with which the European Commission proposes to innovate a novel correct inwards favour of press publishers to ensure the sustainability of the sector against novel forms of exploitation promoted past times aggregators too online operators; too ii) Article 13 — through which it is intended to command platforms too Internet Service Providers (ISPs) that host too brand available content.

Article eleven is inspired past times similar rules lately introduced inwards Federal Republic of Federal Republic of Germany too Spain. Experience with these regimes every bit yet does non suggest that the proposed reform volition produce much to sustain paper publishing or the lineament of local journalism. Outside Italy, the betoken has been made that many of the difficulties facing publishers tin dismiss hold upwardly to a greater extent than proportionately solved past times a presumption that they concur rights inwards the content of their publications, rather than through the creation of a novel “ancillary right” inwards whatever “fixation of a collection of literary industrial plant of a journalistic nature”, with the doubt necessarily attendant on ascertaining the compass of such right. From an Italian perspective, Article eleven does non add together much to the legal framework.

Different difficulties arise from the electrical flow wording of article xiii too its associated recitals. Many of these difficulties derive from the fact that the proposal seeks to intervene inwards a complex legal ecosystem, where in that location are established instruments (the 2000 eCommerce Directive, the 2001 InformationSociety Directive, the 2004 Enforcement Directive and a raft of jurisprudence of the Court of Justice of the European Union (CJEU) which has interpreted these through the lens of commutation rights every bit recognized inwards the EU Charter.

First too foremost, the Definition of legal entities to which the novel obligations apply, is hopelessly uncertain. Article xiii refers to “information lodge service providers that store too render to Earth access to large amounts of industrial plant or other champaign of report thing uploaded past times their users,” too so hands over to the CJEU the unenviable work of identifying whether “large” implies 200 items or 200,000  or somewhere inwards between. The draft JURI Committee Report sensibly seeks to supercede “large amounts” with a measure relating to the grapheme of the activities rather than the book of content. That amendment would boundary the application of the provision to information lodge service providers that are actively too straight involved inwards the making available to Earth of user uploaded content too where this activeness is non of a mere technical, automatic too passive nature.

Valeria Falce

Secondly, the proposed Directive states that these operators "should convey appropriate too proportionate measures to ensure the protection of such industrial plant (…) for illustration through the purpose of effective technologies." The provision refers to the filtering too content tracking techniques already used inwards other industries, such every bit the music industry. However, the CJEU has already held (twice) that such technologies are incompatible with Article fifteen of the eCommerce Directive too commutation rights too freedoms of the platforms too their users (including their personal data). For this reason, amendments inwards several of the Parliamentary Committees too inwards the Council Working Party would delete specific reference to filtering technology, which appears to hold upwardly the solely acceptable means forward.

Thirdly, the proposal uses the price “communication to the public” without clearly referencing Article iii of the Information Society Directive, where it relates to a distinct concept. Implicitly insisting on the conclusion that whatever service provider that stores too provides access to Earth to champaign of report thing uploaded past times their users is “communicating to the public,” Recital 38 ignores the CJEU’s pedagogy that every instance should hold upwardly assessed on its facts. Nor tin dismiss whatever supposition hold upwardly drawn from the recentPirate Bay decision [see here] that hosts that store largely lawful material, but besides some unlawfully uploaded champaign of report thing (prior to receiving convey downward notices) are liable of copyright infringement for communicating the unlawful fabric to the public. Indeed, the CJEU has stated that communication depends on an awareness of the effects of an intervention (a measure that is hard to fulfill when the host is unaware of the fabric that has been uploaded).

A similar objection tin dismiss hold upwardly made inwards relation to the mode inwards which Recital 38 appears to promote a item interpretation of Article fourteen of the eCommerce Directive, which offers sure enough hosts immunity from fiscal liability every bit regards illegal material. While the CJEU has emphasized the importance of cognition too command over too so content every bit the key matters that transform a host into someone to whom the immunity is inapplicable, the Commission controversially implies that the immunity vanishes every bit presently every bit a host is involved inwards whatever “optimization of the presentation of materials or advertisement of such.”

Ultimately, spell the Commission appears to pursue a clear objective (reviewing the laid of responsibilities) through a bold framework, because the proposed Directive lies inside a network of pre-established instruments Article13 is probable to larn a legislative bull inwards a delicate legal china-shop. It volition at the real to the lowest degree innovate “large amounts” of uncertainty, or, worse, obscure the obligations of the subjects involved.”

Posted By Eleonora Rosati to The IPKat