Mind the Gap

As recent proposals for the Digital Single Market come to light, including the controversial link-tax, opinion is split on the effects they might have

“The creation of content is not a hobby. It is a profession,” Jean-Claude Juncker, president of the European Commission, said at his State of the Union Address on 14 September. But not everyone agrees.

Concerns regarding the EU’s recent copyright reform proposals have reached a head following their highly anticipated release, and many are echoing the trepidation that the reforms were subject to following the leaked proposals.

The most controversial of the proposals is a new reform that will provide publishers the rights already afforded to authors, performers, film and record producers for online use of their news publications. The proposal would also allow publishers to benefit from potential future restrictions to hyperlinking following GS Media v Sanoma.

Adam Rendle, senior associate in the IP and media team at Taylor Wessing, says: “Publishers and/or intermediaries may react to the grant of a new right by reducing the amount of accessible content and/or increasing the price of content.”

“In Spain, introduction of a similar law led to the closure of services and the relocation of businesses to countries and markets outside of the EU.”

But a group of five industry associations, including the European Newspaper Publisher’s Association and the European Media Management Association welcomed the proposals, asserting in a joint statement that the introduction of a publisher’s right at the EU level is a “necessary and historically important step in guaranteeing media pluralism as an essential basis for freedom of opinion and democracy in the digital world”.

“The commission’s proposal takes into account the unsatisfactory situation whereby the high-quality content produced by press publishers contributes to the success of many online platforms that do not make a significant contribution to the content, while publishers do not benefit from an appropriate share of the value produced.”

The new reforms also aim to change the role of intermediaries, such as social networks and user-driven content platforms, placing extra obligations on them for when users and third parties upload infringing content.

The commission previously ruled out amending ‘safe harbour’ defences that make up the majority of platforms protections and allow intermediaries to operate without license agreements for their platforms.

Mozilla, creator of the internet browser Firefox, recently released its own petition for EU reform requesting that the commission ensure any new legislation is “future proof”.

But Rendle suggests that this aspect of the reforms is a “valiant attempt to balance the competing interests, but leaves a substantial amount to be discussed between them in years to come”.

“Over time, all sides will be faced with shifting sands and a lack of clear direction from the directive.”

Following the decision, Mozilla released a statement and reaction to the proposals, describing them as “disheartening” and being “more of a regression than the reform we need to support European businesses and internet users”.

“The proposal falls far short on three aspects: it does not modernise EU copyright nor adapt it to the internet era; it introduces the failed and harmful [link tax]; and it would establish barriers to entry for startups, coders and creators.”

OpenMedia.org was very vocal when proposals were leaked, arguing that they “strike a blow at the very foundations of an open internet”.

It said: “If they are made law, the EU will fall far behind the rest of the world when it comes to digital innovation, the exact opposite of the intention behind the European Commission’s Digital Single Market plan.”

Since the official release of the reforms, OpenMedia has reacted with a petition, savethelink.org, in an effort to combat the proposals and show the European Commission its reluctance to accept these proposals. The petition already has over 118,000 signatures.

“The web without links is like a world without roads,” says a statement on the petition homepage. “Links are what empower us to access the greatest collection of human knowledge and experiences the world has ever seen with the click of a button.”

NordVPN, a VPN service provider, has publicly endorsed OpenMedia, with chief marketing officer Marty Kamden saying: “The internet was born with the idea to connect people and to freely share information. The new law threatens to stall the growth of innovation and to harm online businesses, which are the driving force of our modern digital economy.”

NordVPN says it will “support the initiatives of OpenMedia.org to hear the public opinion and to fight for reversal of various unfair laws”.

Not all commentary on the reforms is negative, though. Many of those who benefit from the link tax and other proposals have heralded the reforms as a step in the right direction, and some are asking for the commission to go further.

Industry groups have long campaigned for stricter rules on copyright, most notably with a high profile letter from over 1,000 musicians including Paul McCartney, Coldplay and Lady Gaga.

The International Confederation of Societies of Authors and Composers (CISAC) said: “Europe is waking up to the global community of creators calling for urgent action to secure a fairer digital market.”

“The proposal is a step in the right direction, but additional steps are required to ensure creators receive fair remuneration and to prevent abuse of the existing legal framework by online intermediaries. We are looking at the European Parliament and the member states for more significant action towards a better future for creators in the digital marketplace.”

The Authors’ Licensing and Collecting Society (ALCS) also welcomed the news, with deputy CEO Barbara Hayes stating: “Fairness and balance are the hallmarks of a progressive copyright system, and safeguarding the rights of authors to fair compensation is central to sustaining and developing creativity.”

“This new directive recognises this by enabling teachers and students to access learning materials on terms that will incentivise the creation of new works and establishes further measures to safeguard authors’ rights. It is a good start, but more needs to be done.”

The breadth of response to the reforms has been wide, and, as always, opinions differ between communities. But whether too strict a move or a mere first step, for all parties these reforms seem to have somewhat missed the mark.

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