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EU Copyright: New elements introduced in the Council’s compromise proposal hamper innovation and create legal uncertainty

29 November 2017

Author: OpenForum Europe

Several committees of the European Parliament adopted their respective opinions in the past months, focusing on different aspects of the EU Copyright review. The latest opinion is the one adopted by the LIBE committee, dealing with the protection of fundamental rights. LIBE adopted its opinion on 20 November and although not perfect, at least it clearly tries to ensure that the provisions of Article 13 do not disrupt the existing legal framework and established CJEU case law. This opinion is the remaining one before JURI is expected to vote on its report on January 2018, and it follows the opinions from CULT and IMCO.

The Council is however taking a contrary path and this seems to create a new and dangerous split between the two pillars of the legislative co-decision structure. In its ongoing negotiations, the Council is introducing several criteria and legislative proposals which go even beyond the Commission’s proposal, as one can notice in the Council’s compromise proposal. For example, the Council proposes redefining the cases when online platforms are considered to engage in an ‘act of communication to the public’. Another example, is that the Council proposes to use the criterion of “giving access” to protected content, whereas this criterion was not previously used in EU copyright law and its introduction will lead to an extension of the scope of Article 13, so that even more categories of online platforms would fall under its provisions.

The Estonian Presidency chose to keep silent on the matter of whether online content sharing services are excluded from Article 14 of the E-Commerce Directive. However, this is one of the key elements of the copyright review, and breaking the current legislative framework without conducting any impact assessment, and without offering the opportunity to all stakeholders to provide their input on the new extended proposals, will most certainly result in legal uncertainty, and an increase in citizens’ distrust in a legal system that seems to fail in being adapted to the digital age.

Software developers, organisations, and software companies across Europe and beyond have expressed serious concerns regarding the negative implications of Article 13 and the risk that, as drafted, this Article would fundamentally undermine the foundations upon which Free and Open Source Software is built. As drafted, Article 13 would endanger the existing legal framework around intermediary liability, by shifting responsibility for protecting allegedly infringed rights from rightholders to platforms. Under the current proposal, software development ecosystems would no longer be able to operate as they do today, and software developers’ ability to share and collaborate in the development of source code would be hampered.

If such an important economic sector as software development has been missed, the possibility cannot be ignored that other sectors could also be harmed by Article 13, as proposed by the proposal. Better understanding of the impact of Article 13 in the different application cases, and better awareness of where and how innovation currently takes place in the market, are the required first steps in order to create a proper regulatory framework.

All implications of the proposed Article 13 for the software ecosystem are analysed in our White Paper.