Europe : An Overlayer of Retrograde Rules Instead of an Actual Reform of Copyright Law

After months of consultations and announcements about the implementation of a « Digital Single Market » and the modernization of the European copyright law, the Commission offers only to patch up a fifteen-year-old system. A real reform of the actual legal framework based on the 2001/29/EC directive, which dates back to 2001, was expected; instead, the text would only be marginaly amended by the « Copyright in the Digital Single Market directive ». Furthermore, several of the Commission's propositions contain some serious threats.

Overall, the 2001 directive remains unchanged ; the directive proposal « except in the cases referred to in Article 6, shall leave intact and shall in no way affect existing rules laid down » in the 2001/29/EC (article 1). Neighbouring rights, created at the turn of the century will even be extended to press publishers : « Articles 11 and 12 (i) extend the rights provided for in Articles 2 and 3(2) of Directive 2001/29/EC to publishers of press publications for the digital use of their publications  ». This is one of the main criticism brought forth by advocates of digital freedoms and of a free and open Internet, along with the generalized use of « robocopyright » technologies (article 13). Communia and Edri, both nonprofit organisations at the forefront of the battle around European copyright reform, wrote about their concerns.

The sacralization of technogical measures restricting digital uses— digital handcuffs or DRM —is as important an issue as it ever was. Just as the seventh recital of the directive proposal provides: « The protection of technological measures established in Directive 2001/29/EC remains essential to ensuring the protection and the effective exercise of the rights granted to authors and to other rightholders under Union law ». Press publishers will moreover benefit from this absurd protection (article 11) with consequences for free softwares still difficult to ascertain. For instance, one might wonder how this will impact news aggregator programs.

Furthermore, the Commission doesn't seem to consider that the recognition of a right to interoperability, or even just a simple right to data portability, would be useful in a « digital single market ». One of the consultations, whose results we are still awaiting, dealt with the « interoperability framework », but it doesn't seem to have inspired the European institution much. And, even though in the sixth recital, the proposal expresses how important it is to « achieve a fair balance between the rights and interests of authors and other rightholders on the one hand, and of users on the other  », it deals with this balance only through some narrowly framed exceptions (Title 2 of the project).

Finally, quite typically of the evolution of regulation of online uses over the past years, the directive proposal calls for a stronger liability of technical intermediairies and shows a clear intent to break down the disctinction between the concepts of publishers and hosts. For instance, during the 14th of September 2016 press conference announcing the directive proposal, Andrus Ansip, vice president of the Commission, declared (at around 19'30) that a decision had been made to« use the principle of [duty of] care to clarify where the plateforms are acting as a neutral intermediary and when they are selling new value-added products" ». With such vague terms, hosts' legal security might well become a distant concept. The French association La Quadrature du Net has written on this issue.

The agenda is still unknown, but Gunther Oettinger, commissioner in charge of the digital economy and society department, said during the press conference that he wanted to move fast on this directive. The next step will be the European Parliament, where the debates should be heated, given to what extent the current text seems to be the antithesis of what was drafted by member of Parliament Julia Reda in the report she handed to the Commission in January 2015.