Denelle Dixon Thayer, Chief Legal & Business Officer, Mozilla
The draft directive released today thoroughly misses the goal to deliver a modern reform that would unlock creativity and innovation in the Single Market.
Today the EU Commission released their proposal for a reformed copyright framework. What has emerged from Brussels is disheartening. The proposal is more of a regression than the reform we need to support European businesses and Internet users.
To date, over 30,000 citizens have signed our petition urging the Commission to update EU copyright law for the 21st century. The Commission’s proposal needs substantial improvement. We collectively call on the EU institutions to address the many deficits in the text released today in subsequent iterations of this political process.
The proposal fails to bring copyright in line with the 21st century
The proposal does little to address much-needed exceptions to copyright law. It provides some exceptions for education and preservation of cultural heritage. Still, a new exception for text and data mining (TDM), which would advance EU competitiveness and research, is limited to public interest research institutions (Article 3). This limitation could ultimately restrict, rather than accelerate, TDM to unlock research and innovation across sectors throughout Europe.
These exceptions are far from sufficient. There are no exceptions for panorama, parody, or remixing. We also regret that provisions which would add needed flexibility to the copyright system — such as a UGC (user-generated content) exception and an flexible user clause like an open norm, fair dealing or fair use — have not been included. Without robust exceptions, and provisions that bring flexibility and a future-proof element, copyright law will continue to chill innovation and experimentation.
Pursuing the ‘snippet tax’ on the EU level will undermine competition, access to knowledge
The proposal calls for ancillary copyright protection, or a ‘snippet tax’. Ancillary copyright would allow online publishers to copyright ‘press publications’, which is broadly defined to cover works that have the purpose of providing “information related to news or other topics and published in any media under the initiative, editorial responsibility and control of a service provider” (Article 2(4)). This content would remain under copyright for 20 years after its publication — an eternity online. This establishment of a new exclusive right would limit the free flow of knowledge, cripple competition, and hinder start-ups and small- and medium-sized businesses. It could, for example, require bloggers linking out to other sites to pay new and unnecessary fees for the right to direct additional traffic to existing sites, even though having the snippet would benefit both sides.
Ancillary copyright has already failed miserably in both Germany and Spain. Including such an expansive exclusive right at the EU level is puzzling.
The proposal establishes barriers to entry for startups, coders, and creators
Finally, the proposal calls for an increase in intermediaries’ liability. Streaming services like YouTube, Spotify, and Vimeo, or any ISPs that “provide to the public access to large amounts of works or other subject-matter uploaded by their users” (Article 13(1)), will be obliged to broker agreements with rights holders for the use of, and protection of their works. Such measures could include the use of “effective content recognition technologies”, which imply universal monitoring and strict filtering technologies that identify and/or remove copyrighted content. This is technically challenging — and more importantly, would disrupt the very foundations that make many online activities possible in the EU. For example, putting user generated content in the crosshairs of copyright takedowns. Only the largest companies would be able to afford the complex software required to comply if these measures are deemed obligatory, resulting in a further entrenchment of the power of large platforms at the expense of EU startups and free expression online.
These proposals, if adopted as they are, would deal a blow to EU startups, to independent coders, creators, and artists, and to the health of the internet as a driver for economic growth and innovation. The Parliament certainly has its work cut out for it. We reiterate the call from 24 organisations in a joint letter expressing many of these concerns and urge the European Commission to publish the results of the Related rights and Panorama exception public consultation.
We look forward to working toward a copyright reform that takes account of the range of stakeholders who are affected by copyright law. And we will continue to advocate for an EU copyright reform that accelerates innovation and creativity in the Digital Single Market.