European Copyright – Quo Vadis?

The conference ad the European University Institute of Florence explored two aspects of the Proposal for the Directive on Copyright in the DSM presented by the European Commission on 14 September 2016 (the proposed directive).

First, the creation of an ancillary (neighbouring) right for press publishers, meant to secure the sustainability of press publishing (art. 11); secondly, new obligations for Internet intermediaries (open platforms, user- generated content and social media sites), meant to enhance the enforcement of author’s and publisher’s rights online (art. 13).

Participants represented various attitudes towards the proposed directive. Regarding art. 11, on the one hand it was argued that the ancillary publishers right would support content producers and contribute to quality journalism; on the other hand, concerns were  raised regarding the consistency of the new right with the current copyright framework, its impacts on small publishers and artists, and possible limitations to users’ access.

Regarding art. 13, on the one hand it was argued that involvement of online intermediaries on the licensing of content and its protection would contribute to address the value gap between content producers and intermediaries; on the other hand concerns were raised regarding the scope of the new norms, their impacts on users’ freedoms and on business models of Internet operators, and the capacities and cost of content recognition technologies.

The conference commenced with institutional greetings by Paolo Marzano (Ministero dei Beni e le Attività Culturali) and Riccardo Capecchi (Autorità per le Garanzie nelle Comunicazioni, AGCOM). While presenting Italian Government’s position towards the proposed directive, Marzano emphasised the need to strengthen rights of authors and follow the three-step test of the Berne Convention. Capecchi focused on the issue of enforcement of rights and the phenomenon of piracy.

The institutional greetings were followed by the keynote speech by Marco Giorello, acting head of the Copyright Unit (DG Connect) within the European Commission (EC), who introduced EC’s copyright package.

Giorello indicated two objectives of the package: achievement of single market objectives  and update of European copyright to digital environment. Regarding two provisions of the proposed directive which the conference focused on, Giorello emphasised that right for publishers proposed by the EC follows the pattern of other neighbouring rights and has no effect on the scope of copyright protection. He also noted that new obligations for intermediaries preserve the regime of the eCommerce Directive, and are not aimed at “emptying” article 14 therein.

The first panel of the conference, focused on the need for legal certainly in online press publishing. The first speaker, prof. Raquel Xalabarder (Universitat Oberta de Catalunya) examined the provisions on related right for publishers already in force in Spain and Germany, drawing attention to their wording, problems with application and relevant provisions of the Berne Convention.

The following speaker, prof. Thomas Höppner (Wildau University) emphasised the need for a robust copyright protection of publishers in the context of a substitution effect and direct competition between publishers and intermediaries free riding on publishers’ content. Prof. Bernt Hugenholtz (University of Amsterdam) questioned the consistency of proposed publishers right with the EU acquis, underlining the problems with designating its scope following lack of explicit thresholds.

In her presentation Dr Ana Ramalho (Maastricht University), explored the competence of the EU to introduce a European- wide right for publishers, concluding for the lack of such competence. The last presentation of the panel,  by  prof.  Valeria  Falce  (European  University  Rome),  approved  the  general  objective     of supporting free and pluralist press, but questioned the way it is being pursued, pointing, among other things, at the unclear definition of relevant subject- matter and length of protection.

The second panel of the day addressed the issue of balancing of interests in online press publishing. The first speaker was Brando Benifei (MEP S&D) who focused on the economic impact of article 11, particularly legal costs and hindrance of innovation, as well as possible limitation of linking. The presentation by Caroline de Cock (Copyright for Creativity), touched upon concerns that the proposed right for publishers raises in context of press pluralism and access and sharing of information by internet users.

The following speaker, Jennifer Baker (freelance journalist and EU policy reporter), presented the motivations and interests of journalists, who have little bargaining power. She also commented on the mistakes made in management of news, especially reliance on advertising revenue. The last voice of the panel, was Claudio Giua (Gruppo Editoriale l’Espresso), who indicated that the ancillary right for publishers might not be sufficient to secure the required leverage in the news market and that there is a need to redefine the field in general.

The panel discussions were followed by the keynote address of Therese Comodini Cachia MEP, the rapporteur for European Parliament on the proposed directive. While presenting the main points of her draft report, MEP Comodini Cachia emphasised the need to first establish whether particular issues are copyright-relevant, and second not to assume that rules fit for the analogue world will work in the digital environment as well.

In her opinion, sole presumption of rights for the benefit of publishers should provide them with a stronger position at the bargaining table, with no need to enact additional rights. Additionally, MEP Comodini Cachia emphasised that the obligations imposed by article 13 should be complimentary to eCommerce Directive, technology neutral and formulated in a way which would not impose too much of a burden on smaller players.

The first day of the conference was concluded by the roundtable discussion on the question on how to foster innovation and growth in publishing and creative sectors. Both invited panellists and audience were invited to contribute. Discussants touched upon such issues as effects of Spanish ancillary right for publishers, subsidies, control over access to content and significant role of intermediaries.

The second day of the conference ‘European Copyright – Quo Vadis’ was devoted to discussing the so called ‘value gap’ proposal. Contained in article 13 in the proposed directive, in the EU Commission’s original formulation, it would result in the imposition on hosting providers that give access to large amounts of copyright works thereby performing acts of communication to the public of an obligation to: (1) conclude licensing agreements with copyright holders (unless they are eligible for the safe harbour protection within Article 14 of the eCommerce Directive); and (2) to prevent the uploading of allegedly infringing content.

 The discussion that took place at the European University Institute consisted of two panels and a final roundtable.

The first panel focused on the rationale underlying the ‘value gap’ proposal. The first speaker, Lauri Rechardt (IFPI) highlighted how, on the one hand, the overall revenue of the recording industry has been growing but, on the other hand, piracy and lack of clarity regarding the liability of certain online services, in particular user upload content services, harm the online marketplace. Tobias Mckenney (Google) discussed at length YouTube’s Content ID programme, and explained how in general content recognition technologies work and what challenges they face.

It was then the turn of Lenard  Koschwitz (Allied for Startups) to present the startups’ perspective on the Commission’ proposal   and highlight the potential costs (and resulting barriers to access) that market newcomers would need to bear to comply with the new EU rules if adopted in the form proposed by the Commission. Finally, Giancarlo Frosio (CEIPI) provided an overview of the main global trends regarding intermediary liability and imposition of responsibilities.

The second panel provided a forum to discuss the Commission’s proposal in light of existing EU legislation and case law of the Court of Justice of the European Union. Eleonora Rosati (University of Southampton) focused in particular on the notion of communication to the public and its evolution at the level of CJEU decisions. Roberto Caso and Federica Giovanella (University of Trento) provided a comparative analysis of the EU Commission’s proposal, by considering in particular relevant US legislation and case law. Sophie Stalla-Bourdillon (University of Southampton) addressed the issues raised by automated content recognition technologies from a fundamental rights perspective.

It was then the turn of Gerald Spindler (University of Gottingen) to discuss intermediary liability in relevant CJEU decisions. Finally, Joe McNamee turned to the Audiovisual Media Services Directive to discuss the Commission’s proposal to extend TV rules to video-sharing platforms, and what this might mean for the safe harbour regime in the eCommerce Directive.

Moderated by Eleonora Rosati, the final roundtable provided a chance for panellists and attendees alike to reflect on the potential implications of the EU Commission’s proposal, also in light of the debate that has been unfolding before the European Parliament.