14 Février 2019

Mixed Messages – Provisional Deal on Draft EU Copyright Directive Retains Key Flaws

After thirty months of discussion, there was provisional agreement yesterday on the EU’s draft Directive on Copyright in the Digital Single Market. While there have been marked steps forwards for libraries, the text retains provisions that pose serious threats to freedom of access to information and freedom of expression.

The European Union’s draft Directive on Copyright in the Digital Single Market is the result of years of discussion, with the overall aim to update Europe’s rules to reflect technological change.

The original proposal, made in September 2016, includes provisions in a number of key areas for libraries, notably on text and data mining, education, preservation and use of works which are no longer commercially available.

Furthermore, in response to concern about the major place of internet platforms in the modern copyright economy, sought to find ways of strengthening the bargaining position of rightholders.

Library Efforts Bear Fruit

Two and a half years on, representatives of the European Parliament, led by rapporteur Axel Voss MEP, and of the EU’s Member States, have come to a provisional deal. This will be submitted for approval to the European Parliament as a whole and Member States in the coming weeks.

On the basis of available materials, it is clear that work by Europe’s libraries and cultural heritage institutions has paid off.

The exception allowing for text and data mining has been expanded and made simpler, with anyone with legal access to a work able to mine it. Research institutions will be able to do this in any circumstances, while others will have this right as long as the rightholder has not explicitly stated otherwise.

Provisions on education have been simplified, ensuring stricter conditions on when licensing can override the exception for illustration for teaching. A preservation exception gives libraries more space to digitise works, including through cross-border networks, for preservation purposes.

Significantly, in those situations where there is no collective management organisation with the powers to offer licences, libraries will be able to benefit from an exception to allow them to digitise and make available out-of-commerce works.

Key Problems Remain

Yet there is also the bad. While Article 11 (which grants copyright in short snippets of news) explicitly does not include scientific publications, it still risks harming smaller services which provide a major contribution to media and information literacy efforts, while strengthening the hand of major players.

Similarly, Article 13, which effectively obliges internet platforms to screen all user content before it is uploaded – effectively making users guilty until proven innocent – will not apply to educational and scientific repositories. However, by placing strict controls on sites that people have come to rely on for communication and creativity, represents a major step backwards.

Here too, the new rules will tend to favour pre-existing major platforms with the resources and tools to apply the new rules, at the expense of smaller ones. Steps to protect libraries and library activities are welcome, but the overall direction of these provisions runs counter to library values.

While we await a final version of the agreed text, it appears clear that if the Directive is passed in its current form, Europe’s governments and representatives will be guilty of consolidating the power of major players and harming freedom of access to information.

See IFLA's collection of resources on the copyright reform for more.

CLM (Committee on Copyright and other Legal Matters), Access to information, Copyright, Copyright Limitations and Exceptions for Libraries & Archives, Europe

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