Readers might remember an open letter sent to the European Commission, the European Parliament and the Council a few weeks after the release by the European Commission of a proposal for a new Copyright Directive on 14 September 2016. The open letter, an initiative led by iCLIC, a Southampton University based research centre, had been signed by 40 European Academics (for a short description see my previous post here) and was then complemented by an extended statement focusing upon Article 13 (entitled, “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”) and Recitals 38 and 39 of the proposal. The extended statement was made public on 24 November 2016 in Paris (for more on this event, see here) and sent once again to the European Commission, the European Parliament and the Council.

In a nutshell, the authors of the extended statement reached the following conclusions:

“1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including Court of Justice of the European Union case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts.

2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect.”

Essentially, Article 13 of the proposal is problematic in as much as it seems to suggest that certain types of intermediary providers would become subject to a general monitoring obligation, i.e. an ex ante and systematic filtering obligation.

Lively and constructive discussions took place between the authors of the extended statement and representatives of the European institutions at the  beginning of December 2016.

This was just the beginning of a challenging re-drafting exercise. And in the past few months other initiatives have flourished, supported by a number of EU research centres active in the field of Intellectual Property Law, e.g. in France, in the UK, or in the Netherlands (see here, here, here or here), and on occasion focusing on different aspects of the proposal.

However, MEPs have been quick to engage into the debate. In  December 2016, a note had been released by the Ex-Ante Impact  Assessment  Unit  for  the  European  Parliament’s Committee on  Legal  Affairs (JURI), in which it was noted that the option chosen by the European Commission (as embodied in Article 13 of the proposal) seemed to introduce a general monitoring obligation (“Moreover,  Article 15 of  the E-Commerce  Directive prohibits  Member States from requiring intermediaries to impose general monitoring duties regarding the information they store. Yet, option 2 seems to introduce such a general monitoring obligation”).

On 20 February 2017, in a draft opinion, (which you can access here), the Committee on the Internal Market and Consumer Protection for the Committee on Legal Affairs (IMCO), of which the rapporteur is Ms Catherine Stihler, expressed the view that the current wording of Article 13 of the proposal for a new copyright Directive “is incompatible with the limited liability regime provided for in Directive 2000/31/EC (Electronic Commerce Directive), a piece of legislation that has proven to be enormously beneficial for the internal market in the digital sphere.”

The draft opinion contains a list of amendments, which obviously goes beyond the infamous Article 13 of the proposal. Still, it is worth reading out loud the amendments relating to Recital 38, 39 and Article 13.

• First of all, IMCO is asking for some substantial deletion regarding both recitals 38 and 39. Only the first paragraph of Recital 38 is meant to remain… in a different version though:

“Where information society service providers store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, they should conclude fair and balanced licensing agreements with rightholders in order to ensure fair and appropriate remuneration, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council.”

• Second, Article 13 has been significantly modified. Here is the amended version comprising two paragraphs:

1. “Information society service providers that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users shall achieve fair and balanced agreements in cooperation with rightholders governing such content in order to ensure fair and appropriate compensation for the stakeholders concerned, unless they are eligible for the liability exemption provided for in Article 14 of Directive 2000/31/EC. The implementation of such agreements shall respect the users’ fundamental rights and shall comply with Article 15 of Directive 2000/31/EC. The service providers shall cooperate and work together with rightholders to ensure that the functioning and implementation of such agreements are full and transparent.
2. Member States shall ensure that the service providers referred to in paragraph 1 put in place effective mechanisms, including for complaint and redress, that are available to users in case of disputes over the application of the measures referred to in paragraph 1.”

What do readers think? Assuming that it is not politically tenable to ask for deletion of Article 13, is it at all possible to do better than this redrafting?

Sophie Stalla-Bourdillon