EU law: Brussels burps up aspirational copyright tweaks

Cross-border online access 'widened'

Analysis Brussels’ widely leaked copyright reforms [PDF] have been formally published.

The proposals are intended to “reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU.” They will be tossed about and amended in European Parliament for many months.

But with an activist European Court of Justice fulfilling its date with destiny, and ripping up the law and making its own on the hoof, it’s largely moot. The Commission’s role here is to look busy but not break too much.

As one Brussels source explained to us: “Thorough reform of the digital landscape would entail re-visiting the E-commerce Directive – and no one wants to touch that.” So it’s a symphony of tweaks, instead, like an orchestra warming up but never getting to the opening bars of the score. Much of it is for show.

As with all things Brussels, it’s been an almighty lobbyfest, as various trade groups jostle for breaks. That was complicated by the EU’s sponsorship of an ersatz “civil society” – digital groups who mainly lobby for the large US tech companies.

For example, note the way the Commission congratulates itself on how wise it is:

“New exceptions that reduce to some extent the rightholders’ monopoly are justified by other public interest objectives. These exceptions are likely to have a positive impact on the right to education and on cultural diversity.”

This refers to Brussels’ harmonising copyright exceptions on text and data mining museums’ and libraries’ copies for preservation, and some educational uses. Member states have already brought in their own exceptions already covering these areas; the UK did in 2014.

Member states will be obliged “to put in place a legal mechanism to facilitate licensing agreements of out-of-commerce works and other subject-matter”; although it’s hard to imagine how that can be done – it’s waffle, really.

To address the user-generated content (UGC) loophole – described here with our fictional wellie company – UGC platforms will be invited “to take appropriate and proportionate measures to ensure the functioning of agreements concluded with rightholders and to prevent the availability on their services of content identified by rightholders in cooperation with the service providers.”

That’s a recommendation that effective identifying technology like Google’s Content ID is used, to prevent the whack-a-mole situation.

Article 14 of the E-Commerce directive was intended to protect operations like storage services: the operator loses the liability protection if they’re found to be “optimising the presentation of the uploaded works or subject matter or promoting them.”

It’s hard to see how YouTube, whose business is founded on UGC uploaders uploading other people’s stuff, qualifies for this protection. What the platforms will be required to do will be merely to notify how their filtering or ID-ing software is performing. Nevertheless, expect to hear the phrase “Breaking the Internet” bounded about.

In another symbolic gesture, news publishers get a right to ask for money from snippets scraped by aggregators and search engines like Google. It’s a way of the Commission saying news is important – other publishers don’t get the right. Google’s reaction to this experiment so far, in Spain and Germany, has been to tell the publishers to get stuffed. And because so many publishers are in the the clickbait mentality where they value Google’s traffic, they’ve capitulated.

Unless news publishers can support themselves, and realise Google’s traffic isn’t actually worth very much, the new ancillary right doesn’t change the landscape much.

Portability: too hot for here

Much of the reaction has been bland, but one exception came from the TV and movie sector, in which the Brexiting UK leads. Some 70,000 work in audiovisual in the UK, and the sector provides decent employment for many engineers and other techies. A joint statement by 16 groups involved in TV and broadcasting – including Pact, the indie producers association, production and distribution – said the EU had failed the sector.

The issue of mandating cross-border licensing – so a producer couldn't do a deal for one territory at one price before selling the work elsewhere – is being addressed separately. But it still gets a broadside. TV producers say that Brussels’ “new proposal goes against its political commitment to foster economic growth and jobs in Europe and the obligation to respect cultural diversity in Europe under the Lisbon Treaty.

The proposed Regulation does not "respect the value of rights in the audiovisual sector, as territoriality without full exclusivity has no meaning. Offering less than full exclusivity will generate less income, with a negative impact both on raising financing and on recoupment.”

The UK might have left the EU by the time this is passed by Parliament, but destroying territoriality would remove from UK AV exporters the ability to price by region. And that’s the elephant in the room that nobody really wants to talk about.

The EU expanded so hastily there are huge disparities between income and spending across the region. Issuing grand decrees from Brussels that wish the digital single market into existence doesn’t change that. ®