558 days after it was proposed by the European Commission on 15 September 2016, the Members of the European Parliament adopted on Tuesday 26 March, the compromise text on copyright in the digital single market (the market we all share as Europeans thanks to freedom of circulation of goods, services and persons). And then, 20 days later, that text was passed by the Council and became EU law with a two-year deadline for EU Member States to incorporate it into their national legislations.
It was not an easy ride, by any standard. In fact, it was the most aggressive campaign seen in years.
Before starting to reflect on the campaign, we need to remember how and when it all started.
Did it begin on 1 November 2014 when Jean-Claude Juncker, freshly appointed as President of the European Commission, made the modernisation of copyright one of his ten priorities for the 2014-2019 mandate? No.
Was it in 2013, when Commissioners Michel Barnier, Neelie Kroes and Androulla Vassiliou initiated ‘Licences for Europe’? Not really. That initiative resulted in a long and rather inconclusive stakeholder dialogue, the objective of which had been to deliver practical, industry-led solutions to bring content online: solutions for cross-border access and portability of services (that Directive was adopted in June 2017); solutions for user-generated content (UGC) and licensing for small-scale users of protected material (the UGC part is now included in the Directive on copyright in the digital single market or DSM Directive); solutions for Text and Data Mining for scientific research purposes (also in the DSM Directive). The copyleft (ranging from the Pirate Party to the Big Tech giants) unsuccessfully fought against the final proposals, hoping to get legislation containing broad exceptions rather than having to negotiate with authors and publishers.
Was it when the EU passed the Directive on orphan works in 2012? No, as soon as that law was passed, libraries said it was useless and too cumbersome. Yet, they had been asking for it!
What about 2011, when, for months, libraries, authors, publishers and collective management organisations negotiated the Memorandum of Understanding on out-of-commerce works? No, that MoU was only used in France and Germany and they had had laws before it was signed.I would guess it all started when Google began digitising copyrighted books in the US in 2002 (in Europe, they limited themselves to out-of-copyright books) and then tried to settle out of court in 2008. Would Europe let a Silicon Valley company decide on what to digitise? European libraries, despite an obvious sympathy for an enterprise performing such a gigantic preservation task, did not want to be left out of the picture. The EU’s digital platform for cultural heritage, Europeana, was baptised in 2008. And the EC would publish in 2008 a Green Paper on copyright in the knowledge economy. Anyone who has worked with institutions knows that the delivery of such papers takes years. So, 2002 is probably a fair guess for a starting point.
Hence for more than 17 years, under the stewardship of FEP, European publishers have met politicians to explain their business models and how publishing works, in Brussels, Strasbourg, Frankfurt, London, Paris, Bologna and all over Europe. At these meetings, we took small and large publishers, trade, scientific and educational publishers, start-ups, and collecting societies. We have been criticised by the lobbying watchdog, Corporate Europe Observatory, for being second (after the music industry’s IFPI) in meetings high-level Commission people. I would take it as a compliment.
Is the result of these 17 years of discussion and lobbying satisfactory for the book world? I would say yes.
Obviously, the long negotiations have produced a compromise and the text contains some provisions that will not simplify publishers’ jobs. Yet, on balance, the text brings legal certainty on exceptions and out-of-commerce works, a solution to the share authors and publishers get from collecting societies, another solution for our Nordic colleagues’ extended collective licences, and the provisions on transparency and remuneration take into account the real specificities of our sector.
Let me comment first on the share of the compensation when books are used under exception. This matter arose when the European Court of Justice in November 2015 decided that publishers, because they were not listed in the 2001 Copyright Directive, were not rightsholders according to law. As we have argued, this is totally unreal as publishers — through the contract they sign with authors — are clearly de-facto rightsholders. And while Belgium where the case had been brought, solved the problem through a sui generis right, other EU Member States faced bigger challenges. The DSM Directive solves the issue allowing EU countries to provide publishers with a share in their legislation. This is only fair, given that uses under exceptions affects both authors and publishers.
Second and certainly not the least disputed were the exceptions for text and data mining (TDM), for illustration for teaching and for preservation. I will spare you the demands made by some stakeholders that would have totally distorted the market. The important thing is that the final text is balanced: it says ‘yes’ to TDM for non-profit research (the rights for commercial TDM can be reserved); ‘yes’ for illustration for teaching for extracts of works, within a framework and with a licence override if the licence allows the same uses as the exception; ‘yes’ to an exception for preservation for works contained in library collections. ‘Yes’ also for solutions for out-of-commerce works either through a licence or an exception when there are no bodies to ask for permission (which should not be an issue for books, as we have collecting societies in virtually all EU Member States). And ‘yes’ for the ECL (extended collective licences) of the Nordic countries. All these measures are now part of EU law.
In relation to the most controversial articles: the one on ‘value gap’ will have an impact on publishers as the platforms will have to remove pirated copyright content and prevent it from reappearing almost immediately, as had been normal in the past. This will be a relief, especially for small publishers, whose constant fight against piracy is draining scant revenues.
Even more important than all these ‘technical’ provisions, the vote of Tuesday 26 March has an important symbolic value. Big Tech platforms dominate most of our virtual -and sometime also physical lives and they make the rules on their own. Thanks to the actions of the European Parliament, Council and Commission, Europe has now chosen to affirm that fairer rules should apply to users, authors, teachers, students, researchers, librarians and publishers. This outcome is a first and Europe must stand proud that, after so much discussion and negotiation, to have finalised this exemplary legislation.