21 June 2018

Sunshine and Clouds: The European Parliament Takes Position on the Copyright Directive

Yesterday, the Legal affairs committee at the European Parliament (EP) voted on the copyright Directive. There is welcome confirmation of the value of exceptions to copyright as a guarantee of access to knowledge and use of information across borders. But a sting in the tail remains, with broad scope for obliging educators to pay for licences for all uses of works, and a backwards step on technological protection measures.

After having postponed the final vote many times due to difficulties to find agreement, the lead committee in the dossier has finally adopted a position. Given that the Commission and the Council had already defined their positions, many (among which libraries) placed a lot of hope on the European Parliament’s text to counterbalance some of the (negative) provisions, ahead of discussions between the three institutions to adopt a final text later in the year. 

A series of very positive amendments for libraries have been adopted, although some other worrying provisions have managed to get enough support. With adoption of two very controversial provisions (upload filters and the new press publishers’ rights), some parliamentarians will try to push for more discussions not just in the Legal Affairs Committee, but in the EP as a whole. In that case, the position adopted today will be voted upon the plenary of the EP (751 members instead of the 49 in the legal affairs committee), before this is considered the EP’s final position. This vote would take place on the 2 July.

Here is what the legal affairs committee has decided on some of the most relevant articles for libraries:

Text and data mining

The Parliament has agreed on a mandatory exception for research organisations (now including libraries) to undertake text and data mining (reproductions and extractions of data) of materials to which they have lawful access. It is combined with a second exception, which member states do not need to adopt (optional), allowing any person or institution with legal access to the content to do text and data mining, but giving rightholders the possibility to override this by “reserving” this right. 

Datasets created for the purpose of conducting text and data mining will not have to be deleted afterwards but stored in a secure manner, for instance through trusted bodies appointed for this purpose. This will probably have to be defined at a national level. It is a very welcome provision.

The adoption of this exception does not mean that member states cannot go further under a 2001 Directive on copyright.

Although the compromise adopted is much more positive than previous text, IFLA will continue to advocate for a mandatory exception for text and data mining by all individuals and institutions with legal access to the works, defending the idea that the right to read is the right to mine.

Education

Educational activities using digital materials conducted in the premises of a cultural heritage institution benefit from an exception if the activity is lead by an educational institution. Member states can, however, chose not to make the exception applicable if adequate licenses covering theses uses are available in the market.

Preservation

There is a mandatory exception to make reproductions of works for the purpose of preservation, and it cannot be overridden by contract. The provisions allow for cross-border preservation networks.

A new addition has been made, according to which any reproduction of material in the public domain will not be protected by copyright (under a few conditions).

Functioning of exceptions and limitations

A very worrying provision, that was not present in the Commission’s original text, was adopted by the EP. It establishes that any content accessed thanks to an exception shall not be used through another exception.

Out of commerce works

The EP has added a fall-back exception to the licensed-based system proposed by the Commission to solve the problem of out of commerce works. It means that whenever no appropriate licensed-based solutions are in place, the exception will apply for the reproduction, communication to the public and distribution of out of commerce works by cultural heritage institutions.

The definition of out of commerce works has been amended to explicitly include works that were never in commerce under the system.

Union Legal Deposit

The EP has adopted a provision on a European legal (at the European Parliament’s library) of any electronic publication “dealing with union-related matters” (followed by a non-exhaustive list of topics). The deposit would consist on one copy of every publication on the topic for works published, printed or imported in the Union.

New press publishers right

Although many were expecting the Parliament to delete this article, it was kept. From the library sector, there are worries that it will add another layer of rights to be cleared when using press publications. There are also concerns about the broader implication when linking and sharing information. On the bright side, scientific journals are not affected by this provision.

Upload filters

This other very controversial article sets up an obligation for online content sharing service provides to monitor and filter (taking content down when needed) all content uploaded by user to ensure that no content infringing copyright is available. Only one positive aspect can be underlined: this obligation will not apply to educational and scientific repositories, among other services acting in a non-commercial purpose capacity.

TAKE ACTION!

As mentioned above, and although this vote has been a major step, there is more to come on this dossier and IFLA will keep engaging with decisionmakers to ensure the best result possible.

Our colleagues from VoxScientia provide you the necessary tools to get in touch with your representatives and to express your concern ahead of discussions in Plenary through this call to action. You can also join the #SaveYourInternet campaign (more infromation available here).

Don't hesitate to get in touch with us for any questions.

Together with EBLIDA, we have prepared a briefing on the vote. 

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

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