EU Copyright Revision Talks Stall Over Platform Liability, Other Issues

"Article 11 and 13 continue to be the main reason why negotiations are not progressing," emailed former Center for Democracy & Technology European Affairs Associate Laura Blanco. The move by 11 EU members to reject Romania's latest compromise was a "refreshing turn of events," she said. Disagreements on Article 13 primarily involve whether the compromise text should include mitigation measure for liability for copyright infringement for all user-generated platforms or whether it should exclude small and midsize companies, she said: If the EC "truly wants to get this file through before the European elections in May, it should focus on all those other elements of the proposal that have received wider consensus and leave out Article 11 and 13 altogether."

France and Germany are wrangling over a possible threshold for Article 13 liability, or possibly over some of the provision's implementation measures, emailed Hogan Lovells (London) intellectual property attorney Alastair Shaw. Germany wants an exception for micro enterprises and start-ups, but France disagrees, said Member of the European Parliament Axel Voss, of Germany and the European People's Party, after talks stalled. Voss wrote the parliamentary report responding to the EC copyright revision proposal. Shaw knows of no other copyright law with an economic threshold like this one.

The European ISP Association believes articles 11 and 13 should be deleted, emailed attorney Innocenzo Genna, who advises on European telecom, internet and digital regulation. The creation of a news publisher's right (Article 11) is intended to strengthen publishers' bargaining position when they negotiate use of content with online services, but the ancillary right sought to be imposed on European ISPs would create an additional layer of licensing complexity and adversely affect development of innovative business models, he said. Article 13, which aims to tackle the "so-called value gap" by asking platforms to cooperate with rightsholders to prevent the availability of infringing content on their sites, would excessively burden platforms, Genna said.

European news publishers urged the EU institutions "not to waste time" before scheduling more discussion on the proposed directive. They warned "Google has intensified its scaremongering about the possible impact" of the new ancillary right for such publishers by running a "test" showing how Google Search might look if publishers could choose to seek licensing agreements with the search giant for reuse of their content. However, said the European Publishers Council, European Magazine Media Association, European Newspaper Publishers' Association and News Media Europe, Google prefers to provide a bad product over ending their "freeriding of the work of journalists and publishing houses." Google didn't comment.

Aside from 11 and 13, there is a "sleeper" issue, Shaw said. Article 16a, inserted into the European Parliament's negotiating position last summer, would require that national laws ensure authors and performers can revoke not only exclusive licenses they grant to third parties for commercializing works that haven't been exploited, but also the right to revoke outright transfers. Where authors' rights aren't assignable in the first place, such as Germany, that might not be a problem, but elsewhere, such as in the U.K., it's "likely to be highly controversial given that outright assignment of commissioned copyright works by authors is the norm in many sectors."