EU copyright reform - June 2018 update

Over the last few months, the discussions about the proposed Copyright in the Digital Single Market directive have continued in Brussels. As we head towards the summer break, it is time to provide another update on the latest developments and activities of Europeana and our partners. These aim to ensure that the new directive will help European cultural heritage institutions better fulfil their mission in the digital space.

Today, we take a look at the negotiation position that was agreed upon by the Member States while we wait for the European Parliament to adopt its own position.  

Timeline

The most significant development of the past months has been that the Council has adopted a negotiation mandate (late May 2018). In doing so, the EU Member States have agreed on a set of changes to the Commission's proposal that they will try to have adopted in the upcoming negotiations with the Commission and the European Parliament. Before these negotiations can start, the Parliament will need to agree on changes to the proposed directive that it can bring to the negotiation table. The vote in the Legal Affairs (JURI) committee is currently scheduled for 20 or 21 June 2018.

If the European Parliament indeed manages to wrap up its discussions and vote by the end of June 2018, then the negotiations between the Parliament, the Commission and the Council can start at the beginning of the Austrian presidency on 1 July 2018. At this stage, it is too early to make a prediction about the duration of these negotiations, but it seems at least possible that they could be concluded before the end of 2018 which would allow the directive to become adopted in early 2019.

The Member States' position

So what have the Member States agreed on exactly? The following is an overview of the changes that Member States want to make that are most relevant from the perspective of cultural heritage institutions. In general, the Member States’ approach has been quite conservative in the sense that they do not propose any radical departures from the Commission's original proposal.

• The Member States have left the text and data mining (TDM) exception in Article 3 of the proposal largely untouched. The addition of ‘cultural heritage institutions’ to the beneficiaries who may engage in TDM for the purpose of scientific research is a small concession, but it remains problematic that the expiation does not apply to all beneficiaries and for all purposes.

• At the insistence of some Member States, the Council text contains a new Article 3a. This allows Member States to introduce an exception that would allow anyone to engage in text and data mining of lawfully accessible works unless the rights holders have explicitly stated that they do not allow this. This is a step in the right direction (in countries that will choose to implement such an exception), but it comes at the cost of further fragmentation of user rights in the EU.

• The Member States have made only minor changes to the exception for online educational activities in Article 4. This means that they support the Commission's narrow approach that limits the beneficiaries of this exception to those who are enrolled in formal educational settings and allows publishers to override the exception via licensing.

• The same is true with regards to Article 5 -  the exception for ‘preservation of cultural heritage’. While cultural heritage institutions had asked for it to be clear that such preservation includes digitisation, the Member States only expanded the purpose slightly excluding the term ‘sole’ from the Article which now reads: ‘for the purpose of preservation’. This is a missed opportunity that could create legal uncertainty given that almost all preservation currently involves digitisation.

• The Council text does propose some more substantial changes to the provisions on the ‘use of Out-of-Commerce Works by cultural heritage institutions’ in Articles 7-9. The changes proposed by the Member States simplify some of the overly complex procedures the Commission has envisaged (most notably the rules regarding in which Member States a licence needs to be sought for making Out-of-Commerce Works, OOCW, available). This will make such provisions more usable for cultural heritage institutions. Yet even with these changes, the fact remains that the Extended Collective licensing approach foreseen by the Commission will not work for all types of works and in all Member States. Without a fallback exception, the provisions aimed at enabling access to OOCW will provide a partial solution to the problems faced by Europe's cultural heritage institutions.

• The Member States have also agreed to add a new Article 9a to the text that would allow them to implement domestic extended collective management schemes that go beyond enabling access to OOCW (such licences could cover entire collections regardless of whether they are in commerce or not). Such a provision would be good news for institutions in Member States that choose to implement this Article. However, from the perspective of harmonising the conditions under which cultural heritage institutions across Europe (or a pan-European platform like Europeana) operate, this is rather problematic.

• Finally, while the Member States have backed the controversial introduction of a new right for press publishers, as foreseen in Article 11, they are proposing some positive changes that would benefit cultural heritage institutions. In the version proposed by the Member States, the duration of the right is brought down from 20 years after publication to a maximum of two years after publication and it would not apply retroactively (thanks to a last-minute intervention by the Czech Republic). This means that it would not affect any digitisation projects that have already been concluded.

Looking ahead

All things considered, these changes would amount to small improvements for cultural heritage institutions. However, it is clear that the version adopted by the Member States will not provide a comprehensive solution to the problems faced by Europe's cultural heritage institutions. It remains to be seen if the European Parliament will adopt a more forward-looking position later this month (in the parliament a fall-back exception for OOCW is still on the table at this moment; June 2018).

Once the parliament has voted on its position, we will be back with another update here.

Note: On behalf of the Europeana Network Association, the Europeana Foundation represents the view of cultural heritage institutions in the debates around the EU copyright reform. Read the full consensus driven mandate. The mandate was approved with a clear majority of the Europeana Network Association Members Council, with a small number of organizations recording their dissent (which are clearly recorded in the mandate).