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EU Copyright Reform: Computer & Comms Industry, Press, Other Major Stakeholders Raise Concerns

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Tuesday, on the virtual eve of the scheduled December 9th release of and vote on the foundational policy for future European copyright reform laws, the Communication from the European Commission to the European Parliament on copyright reform ("Communication”), a broad coalition of more than twenty entities and organizations representing news publishers and other digital content and services providers, consumers, and civil rights advocates fired new salvos in the battle between digital rights stakeholders and EU copyright reform proponents.

The Communication will set the copyright agenda for years to come. It is a vital part of the European Commission’s Digital Single Market (DSM) Strategy announced in May of this year. 

The effects of the reforms currently being discussed in a leaked draft Communication are not limited to the EU. Many EU-implemented copyright reforms will have global impact, such as (as previously reported) potential restrictions on the use of hyperlinks to connect to digital content, Yet the Communication is not, this coalition wrote to the Commission and Parliament, being adequately reviewed with digital rights stakeholders, with potentially prejudicial results.

Computer & Communications Industry Association leading the charge

The Computer & Communications Industry Association (CCIA) announced Tuesday that it and other members of the coalition, including the Center for Democracy and Technology (CDT), sent letters to First Vice-President of the European Commission Frans Timmermans and to Members of the European Parliament, raising concerns about lack of adequate consultation with stakeholders prior to the scheduled release on December 9th of the Communication from the European Commission to the European Parliament on copyright reform (“Communication”). The CCIA is a U.S. based organization with offices in Europe and includes members ranging from Amazon, Facebook, Google and Yahoo. 

This broad coalition of stakeholders raised concerns about the “European Commission’s approach in consulting on copyright matters.” According to CCIA, it and other members of the coalition, including the Center for Democracy and Technology (CDT) sent letters Tuesday to First Vice-President of the European Commission Frans Timmermans and to Members of the European Parliament, raising concerns about lack of adequate consultation with stakeholders prior to the scheduled release on December 9th of the Communication from the European Commission to the European Parliament on copyright reform (“Communication”). Another coalition organization titled their missive, " Dear European Commission, could you at least pretend you’re listening to us? ".

Jakob Kucharczyk, Director in the Brussels office of CCIA, said in an email last night that the primary objection of his group and of the coalition as a whole is that "stakeholders views to the consultation on platforms should be taken into account, particularly as regards the harmful concept of an ancillary copyright for press publishers."

Backgrounder: Communication on copyright reform

As reported November 9th, a leaked copy of the Communication was released to the press and then publicly criticized by European Parliament member Julia Reda.  As discussed in that article, Reda specifically protests that the Communication as currently drafted will form the basis for future implementation of “ancillary copyrights.”

Reda predicts that implementation of “ancillary copyrights” would include, among other onerous provisions, legislation restricting the provision of hyperlinks to connect to copyright protected works, potentially even making use of hyperlinks an act of infringement—effects that would have global impact on individual and entities, from individual blog writers to major multinationals such as Google .

Procedural concerns

The coalition protests that the scheduled release of and vote on December 9th on the Communication is premature in view of another ongoing, closely related consultation, on the “Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy”  (“Online Platforms consultation”). The Online Platforms consultation is not scheduled for completion until December 30, weeks after the scheduled December 9th Communication release and vote.

The coalition letters request that:

  • communications not be released before the end of consultations that are relevant to the subject at hand, and that detailed impact assessments be published before legislative proposals;
  • all EU citizens, associations and businesses can participate in Commission consultations and that they are able to respond to any of the questions posed in them; and
  • detailed impact assessments are published before legislative proposals.

Of particular concern is that “some critical questions are only addressed to rights owners, depriving other stakeholders to voice their point of view.”

Substantive concerns 

The overlapping topics in both the not-yet-complete Online Platforms consultation and in the Communication include “ancillary copyright for press publishers” and the clarification of the concept of “communication to the public”. Specifically, this includes the idea that copyright shall be clarified as regards news aggregation services and their display of hyperlinks, among other clarifications being actively consulted upon, Kucharczyk said.

Other topics that are expected to be addressed in the Communication that are still under discussion in the online platform consultation include:

  • the role of online platforms in content distribution;
  • the liability protection regime of the E-Commerce Directive; and
  • the copyright notice and takedown system (as part of enforcement of intellectual property).

Andrus Ansip, European Commission Vice-President for the Digital Single Market said Tuesday in a speech entitled, “The future of copyright reform in the EU:”

“Today's [copyright] system is out of touch with the digital age. Very soon, as part of our DSM (Digital Single Market) strategy, we will take the first steps to modernise Europe's outdated rules on copyright.”

The coalition believes this modernization process needs to be more inclusive and better-synchronized to ensure that all affected parties have an opportunity to comment during consultation phases on all substantive aspects for reform, before formal steps are taken such as issuance and adoption of communications. In essence, they are saying that the Commission’s legislative reform system is out of touch with the digital stakeholders.

 

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