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A [Temporary] Defeat for Copyright at the European Parliament

It was one of those big dramatic days the European Parliament had already seen before. A YES or NO vote in Plenary charged with huge political and social pressure. And, as it is common in these occasions, Members of Parliament were called to vote not about what the text submitted to them actually and literally said (a balanced result of two years of debates, legal analysis and delicate negotiations);  but about the catastrophic consequences that a positive vote would have for freedom of speech around the planet.

Internet and all its benefits were threatened if this infamous article 13 of the new Copyright Directive were to pass in its proposed text. Or so pretended the loud voices against it: “If Article13 passes it will change the way that the Internet works, from free and creative sharing to one where anything can be instantly removed, by computers”, said a powerful lobbying NGO. Both battling armies looked for external support: Wikipedia closed down its Italian and Spanish editions; Sir Paul McCartney wrote to the legislators in support of the new rules.

Technically, the vote was about confirming, or not, the text proposed by the responsible Committee (Committee on Legal Affairs, JURI Committee), as a basis for negotiation with the Council. In other words, this was not at all a final vote on a law. The JURI Committee had already softened the original text proposed by the Commission, reduced its scope, and introduced several measures to limit abuse and preserve proportion in any obligation on removal of unlicensed content. And, by the way, it had also made it clear that a website like Wikipedia would never be covered by the rule. According to the discussed article 13, “in the absence of licensing agreements with right holders online content sharing service providers shall take, in cooperation with right holders, appropriate and proportionate measures leading to the non-availability on those services of works or other subject matter infringing copyright or related-rights”. But “the implementation of such measures shall be proportionate and strike a balance between the fundamental rights of users and right holders”; besides, “shall […] not impose a general obligation on online content sharing service providers to monitor the information which they transmit or store”.

But at the end no nuance was accepted, and the joined vocal effort of internet libertarians and interest groups won this battle: on 5 July 2018, the Plenary rejected the draft by 380 votes against, 278 in favour and 31 abstentions. This was a first in the Parliament’s history, as the possibility of overruling the Committee proposal is new and had never been used with success. Now the full Parliament has until mid-September to introduce amendments, which will be then voted in Plenary. The resulting text will be the one with a mandate for negotiation with the Council (including representatives of the 28 Member states and acting as co-legislator much in a way an upper House would).

If there is no agreement, everybody will lose: the real result would be to prevent the modernization of copyright in the internet era, and to leave it with many absurd limitations that right holders had accepted to modernize.

To be continued…

Copyright 2018 K & L Gates

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About this Author

Ignasi Guardans, KL Gatens Law Firm, Public Policy Attorney
Partner

Ignasi Guardans, PhD, is a partner in the firm’s Brussels office. Before joining K&L Gates he was involved in public policy and governmental affairs in different ways since 1995, in Spain and at the European Union, representing more than 25 years of experience in international relations and international trade. He has also been particularly involved for years in legislation drafting and policy practice related to TMT, Technology, Media & Telecom.

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