Copyright reform: updates, quotes

The website EU Copyright Framework (which I helped to create) has an in-depth analysis of the 2019 EU copyright reform proposal’s article 11 and 13, and has a questions-answers page.

At some moment we froze the website. Below are additional analyses, quotes, and links.

Table of Contents

1 25 Research centers, March 24, 2019


‘In our first open letter of 24 February 2017, we said:

“While the Proposed Directive on Copyright in the Digital Single Market (COM(2016) 593 final) contains a number of reasonable, common sense measures (…), there are two provisions that are fundamentally flawed. They do not serve the public interest.

Article 11 [now 15] seeks to create an additional exclusive right for press publishers, even though press publishers already acquire exclusive rights from authors via contract. The additional right will deter communication of news, obstruct online licensing, and will negatively affect authors.

Article 13 [now 17] indirectly tries to amend the E-Commerce Directive (2000/31/EC) that arranges the liability of online intermediaries for user generated content into a shared responsibility of rights holders and service providers. The proposals will hinder digital innovation and users’ participation.”

This diagnosis is still correct. During the last two years, we have reviewed the existing evidence and offered access to independent research. There have been improvements to the initial drafts, but on balance, Articles 11 and 13 will do more harm than good. They should be deleted.

We have said previously: “It does not happen often that there is wide scientific consensus on a contested policy issue. This is such a case, and policy makers need to take note.” '

2 IP Watch, interview with Reto Hilty

IP Watch: Max Planck Institute Director Reto Hilty: Europe Might Miss Chance For Real Copyright Law Modernization

“As there is little chance that rights owners will grant licenses for such creative use, the legislature has to step in. Similarly to the regulation of the private copy, copyright legislation can replace the consent of the right holder based on a statutory permission.”

“But also the European economy is threatened with damage if we stick to an outdated copyright system.”

“Europe’s ambitions to keep up with the global pace in artificial intelligence or even to take a lead role there appear to be unrealistic if we are not prepared to re-consider much more fundamentally the functions of copyright in the digital world.”

“A new attempt towards a forward-looking copyright directive after the elections in May this year would provide us with the opportunity to do so.”

3 Dirk Visser: Trying to understand article 13

Dirk Visser, Leiden Law School: Trying to understand article 13 (draft)

“These limitations are so important, that member states shall ensure that users can rely on them. But again, the article does not make clear how the member states shall ensure this.”

“Article 13(7*) suggests: ‘The application of the provisions in this article shall not lead to any general monitoring obligation’.

This seems an untenable statement.”

“Creating these ‘mechanisms’ will probably require a very substantial investment by the member-states, because there will most likely be many disputes.”

“It shall not happen. And it shall not lead to any identification of individual users. And users shall be properly informed by their OCSSP’s according to article 13 (8*) par. 5”

“In the end the courts will have to decide what the OCSSP’s and other providers can reasonably be expected to do. Unfortunately, article 13 gives very little guidance for this. It rather describes and creates very elaborate contradicting objectives and obligations.”

4 IvIR: Global Online Piracy Study

IvIR: Global Online Piracy Study

The study finds that despite the decline in physical sales, the increase in digital sales led to net growth for total recorded music, audio-visual content, books and games between 2014 and 2017; expenditures on live concerts and cinema visits are growing; and finds a decreasing number of music pirates in Europe.

5 Malte Engeler on data protection and article 13

Dr. Malte Engeler, judge: Copyright Directive: Does the best effort principle comply with GDPR?

“The mandated best efforts to prevent uploads according to Art. 17 para. 4b and 4c Copyright Directive must therefore be seen as a legal obligation that is in violation of Art. 7 and Art. 8 CFR (…)"

“and controllers are asked to choose between two equally unacceptable risks: Processing data without a legal basis because Art. 17 para. 4b and 4c Copyright Directive does not meet the requirements of Art. 6 GDPR (…)"

“or face the liability Art. 17 para. 4 Copyright Directive imposes on them.”

6 Artists

Artist explains how filters work against him (YouTube)

Open Letter from Artists, Creative and Cultural Workers:

“The proposed Copyright Directive is not in our interests. We will gain no significant revenue from it, but it will reduce our ability to create new cultural works and find audiences for it.” The proposed Copyright Directive is not in our interests. We will gain no significant revenue from it, but it will reduce our ability to create new cultural works and find audiences for it.

Enno Park:

“Viele freie Künstler:innen verteidigen die EU-Urheberrechtsreform, weil sie glauben, dass das Internet™ ihnen etwas wegnähme. Dabei ist der wahre Konflikt ein anderer. Thread:”

Sascha Lobo: Lasst uns nicht auf diese Fake-Reform hereinfallen!

“Kreative, wir haben ein Problem …”

Echte Sprookjes; Dan Bull


“summary of the #Copyright debate: While across 🇪🇺 more than 100.000 citizen protest against #Article13, collecting society executives are holding up little yellow papers in support of the directive, while zipping champagne at the Paris book fair.”

(note the images)

Anna Mazgal:

“In case you were wondering, the people which champagne won.”

7 Joe McNamee: Is article 13 really the end of the open internet?

Joe McNamee: Is article 13 really the end of the open internet?

“Simply put, independent creators will be stuck behind three gatekeepers: the platforms, the collecting societies and the filtering companies.”

“In order to connect with existing or new audiences, creators and artists will become even more dependent on these few platforms—and subject to their whims.”

“This is not about infringements. Indeed, there is virtually no mention of infringements in the proposals on article 13. It is about “identification”. It is about giving power and control to intermediaries like collecting societies.”

“If article 13 was holding the biggest platforms to account, it would be a good thing. If article 13 was ensuring that artists could reach their audiences more easily, it would be a good thing. If article 13 was reducing the number of gatekeepers, giving more power to smaller artists, allowing them to get paid more easily for their work, it would be a good thing. Instead, it is dismantling the internet as we know it, strengthening the strong, and creating legal chaos. Many opponents of article 13, including in civil society, support the goals of the proposal to give more power and more control to artists. Sadly, there is little evidence that the proposal has any chance of achieving this goal.

As the International Federation of Journalists said: “the Copyright Directive makes a mockery of journalists’ authors’ rights by promoting buy-out contracts and bullying to force journalists to sign away their rights and giving publishers a free ride to make more profits while journalists receive zero”. This analysis applies across the board. Article 13 is not made for artists.”

8 Patreon blog: Make Art, not Art13

Patreon blog: Make Art, not Art13

“Article 13 threatens creators’ ability to directly connect with fans and strengthens corporate rights holders at the expense of independent creators. Most importantly though, Article 13 does not acknowledge the very nature of creativity.”

“It’s cold foggy day in Liverpool, 1963. A young, upstart band freshly signed to Parlophone Records is recording their debut studio album. Still finding their voice as songwriters, these kids relied on cover songs for nearly half the tracks. Not a year later, they’re back in the studio, again recording an album of just over half originals, nearly half covers. The next two years, nine more cover songs make it onto two more studio albums. Twenty-one cover songs in all make the first four studio albums.

For those non ‘history of rock and roll’ buffs, I’m talking about the Beatles.”

“The point is that in the past, the law has acknowledged the iterative nature of creativity and built meaningful and useful solutions. In the US, and across most of the EU, songwriters are required by law to issue a license for covers and cover artists are required to pay a certain amount in royalties. Just as musicians rely on access to songs written by others, today’s online creators should have access to properly use the works of others.”

9 Remuneration

EDRi work on remuneration

The submissions below argue for just remuneration (and for making EU law compatible with the UN International Covenant on Economic, Social and Cultural Rights, ICESCR).

FFII, 2013, IP enforcement

AW, 2014, EU Copyright

FFII, 2016 IP enforcement

10 Nextcloud, SMEs

NextCloud: 130 EU businesses sign open letter against Copyright directive Art. 11 & 13

“Given all of these issues it is noteworthy that the final trilogue agreement lacks meaningful safeguards for small and medium enterprises. The broad scope of this law would most likely lead to less new companies being founded in Europe and existing companies moving their headquarters out of Europe. For all those reasons we urge every pro-Startup politician to vote against Article 11 and Article 13.

see also: Allied for Start Ups

11 YouTube, Spotify

YouTube numbers, according to YouTube (click “View all YouTube statistics”).

Spotify deals

Techdirt: Yes, Major Record Labels Are Keeping Nearly All The Money They Get From Spotify, Rather Than Giving It To Artists

12 Music Business Worldwide: Universal just had ‘the best year for any music company ever’

Music Business Worldwide: Universal just had ‘the best year for any music company ever’

“The video not only revealed that Universal Music Group artists have pulled in over one trillion streams on all platforms since January 1st last year, but also informed onlookers that UMG’s 2018 represented ‘the best year for any music company ever’."

More music industry numbers

13 Trüpel (October 2018)

FFII blog: Green MEP Trüpel argues she didn’t vote in favour of upload filters

“The discussion below reveals that Trüpel misrepresents article 13 as notice and take down, often disregards that rights holders do not have to grant a licence, and sees filtering by humans as an alternative to automatic filtering.”

14 EDRi document pool

15 Demos 23 March

16 Nordstream deal

Julia Reda:

“German newspaper FAZ reports its investigation found strong indications that Germany traded its support for the #copyright deal for French concessions on Russian gas #northstream2”

17 Statements saying article 13 doesn’t contain upload filters

Collection of statements saying no upload filters in article 13.

18 EU Parliament vote 26 March 2019

19 Who kept pledge to vote against article 13?

20 Statements after the EP vote


“Disappointingly, the newly adopted Directive does not benefit small independent authors, but instead, it empowers tech giants. More alarmingly, Article 13 of the Directive sets a dangerous precedent for internet filters and automatised censorship mechanisms – in the EU and across the globe.”

“European Digital Rights (EDRi) has long advocated for a copyright reform that would update the current EU copyright regime to be fit for the digital era, and make sure artists receive remuneration for their work and creativity. This Directive delivers none of those.”

“EU Member States will now have to transpose the Directive into their national laws and decide how strictly they will implement upload filters. People need to pay special attention to the national-level implementation of the Directive in order to ensure that the voted text does not enable censorship tools that restrict our fundamental rights.”


“The new Copyright Directive is a lost opportunity for Europe”

“The Directive is the most important European regulation of the digital sphere in the last several years. It will define the shape of copyright in Europe for years to come — and have spillover effects for regulation around the globe. We believe that the approved directive will not meet the goal of providing a modern framework that balances the interests of rightsholder and users, protects human rights and enables creativity and innovation to flourish. Instead, it is a biased regulation that supports one business sector, at the cost of European citizens.”

The Economist:

“The EU’s new copyright reform is just one example of Macronesque rules meant to shelter established interest groups”

Rossoglou Kostas:

“MEPs from EU Member States with vibrant startup economy voted against controversial #CopyrightDirective. New division across the EU between innovation friendly states vs monopoly friendly states”

Jef Mathiot: statistics

Julia Reda, Creative Commons, Thread on US 230 and eCommerce, John Cleese – Vrijschrift

Dutch: Kuitenbrouwer, Reply Vrijschrift, Bits of Freedom, Vrijschrift blog, Vrijschrift on Twitter, CDA

21 We could have had no internet

Communia points to 7 minutes in which professor James Boyle explains we could easily have had no internet as we know it due to copyright.

“Professor Boyle is talking about how the existing intermediary liability regime (as enshrined in the commerce directive and the DCMA) came to be and how that has shaped the internet in the past two decades

Watching this, you cannot but wonder what yesterdays vote, which turns the intermediary liability regime for commercial platforms on its head will do to the evolution of the internet in the EU. It is too early to know how this will play out, but the consequences will be real.”

22 One day after EP vote, France prepares internet filters


“Still, it’s rather striking that just a day after the vote, as pointed out to us by Benjamin Henrion, France’s Minister for Culture gave a speech in which he admits that it requires filters and hopes that France will implement the law as quickly as possible in order to start locking down the internet.”

Discours de Franck Riester, ministre de la Culture, prononcé lors du Lille Transatlantic Dialogues dans le cadre du festival Séries Mania à Lille, le 27 mars 2019:

“Je vous annonce également que le Conseil Supérieur de la Propriété Littéraire et Artistique, la HADOPI et le CNC lanceront conjointement dans les prochains jours une « Mission de promotion et d’encadrement des technologies de reconnaissance de contenus ».”

For translation and comments, see Florian Mueller and Techdirt above. “Technologies de reconnaissance de contenus” = content recognition technologies.

Also: Marc Rees

23 Council vote 15 April

24 Implementation

EU Member states may implement article 17 (formerly 13) in a narrow way, in order to ensure compatibility with article 1 of the directive, the EU-Canada trade agreement CETA and fundamental rights.

First, article 1 of the directive, subject matter and scope, says the directive will not change among others the eCommerce directive (2000/31/EC), with only one exception (which is not relevant here).

TITLE I GENERAL PROVISIONS Article 1 Subject matter and scope

  1. This Directive lays down rules which aim to harmonise further Union law applicable to copyright and related rights in the framework of the internal market, taking into account, in particular, digital and cross-border uses of protected content. It also lays down rules on exceptions and limitations to copyright and related rights, on the facilitation of licences, as well as rules which aim to ensure a well-functioning marketplace for the exploitation of works and other subject-matter.
  2. Except in the cases referred to in Article 24, this Directive shall leave intact and shall in no way affect existing rules laid down in the Directives currently in force in this area, in particular Directives 96/9/EC, 2000/31/EC, 2001/29/EC, 2006/115/EC, 2009/24/EC, 2012/28/EU and 2014/26/EU.

Second, Julia Reda (podcast), Glyn Moody, and Cory Doctorow note article 17 (formerly 13) is incompatible with the EU-Canada trade agreement CETA.

Third, Dirk Visser notes that Article’s 17 (formerly 13) “The application of the provisions in this article shall not lead to any general monitoring obligation” seems an “untenable statement”. He furthermore notes contradictions and finds the safeguards not convincing.

Author: Ante Wessels

Created: 2019-04-24 mer. 12:52

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