New presidency of the Council of the European Union ... new position on the EU copyright reform?

Following the conclusion of the 6-month Estonian presidency, the presidency of the Council of the European Union is now Bulgarian, and will be so for the first semester of 2018.

The Council is one of the key EU institutions and brings the voice of Member States' governments into the decision- and law-making process. In fact and among other things - together with the European Parliament - the Council is in charge of adopting EU legislation.

Of course, one of the pending pieces of legislation that might receive a decisive boost towards its formal adoption over the next few months is the Directive - proposed by the EU Commission in September 2016 - on copyright in the Digital Single Market [here; Katposts here].

Since its release, the draft directive has attracted extensive commentary. In particular, the draft provisions contained in Article 11 ('Protection of press publications concerning digital uses', this being a proposal to introduce a new neighbouring right in favour of press publishers) [Katposts here] and Article 13 ('Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users', this being a proposal to be read in combination with Recital 38 in the preamble to the directive and aimed at remedying the so called 'value gap' or 'transfer of value') [Katposts here] are those that have been subject to the most extensive scrutiny, at several levels.

Consensus in the Council regarding the proposed copyright directive

The former Estonian presidency worked indeed on reaching consensus among Member States' governments regarding the position that the Council of the European Union would adopt in relation to Articles 11 and 13 in particular.  

Different versions of the Estonian 'compromise' were made available and, of course, widely commented. 

For the Council to be able to advance its position political consensus among the various Member States' governments is key.

The latest, consolidated, version of the presidency compromise proposal is available here.

Now that the presidency of the Council has passed to Bulgaria, what will change (if anything)?

Bulgarian's questions for Coreper orientation debate

Yesterday, a document prepared by the Bulgarian presidency and aimed at setting up an 'orientation debate' on Articles 11 and 13 of the proposed directive within Permanent Representatives Committee (Coreper) was released.

What's in it?

First, the Bulgarian presidency highlighted the progress made under the Maltese and Estonian leadership, and noted that any progress would have as a basis the latest compromise proposal prepared by the Estonian presidency. 

This said, the Bulgarian document sets up some questions for consideration by Coreper, with the hope that consensus could be reached among Member States.

Press publishers' right: to be kept ... possibly with some nuances

With regard to the proposed press publishers' right, Bulgaria noted that no consensus could be reached on either option advanced by Estonia, ie: (A) an actual right, that would be written in such a way that its scope would be clearer than what the Commission had proposed; or (B) a presumption of entitlement of press publishers to license and enforce the rights in their press publications. 

From the text of the document it would appear that Bulgaria favours option (A). In fact, the document formulates a number of questions around option (A), the answer to which could help Member States achieve consensus in the Council in the form of an acceptable compromise. 

Where do you think you're going?!

In particular, the Bulgarian presidency is asking Member States about:

- determination of the extracts of press publications that would fall within the scope of the right: would that be a matter of originality (and therefore eligibility for protection also under copyright, as per Infopaq) of the part reproduced, or should size be a criterion irrespective of originality?

- whether the type of use made of the press publication (commercial or non-commercial) should be a relevant criterion;

- term of protection: is the original proposal of a 20-year term adequate?

Value gap proposal: also to be kept ... subject to a few clarifications (or not) 

Also here, the Bulgarian presidency seems oriented towards maintaining Article 13 in the text of the directive, but is asking Member States to comment on certain aspects of the provision, hoping that addressing these issues would allow consensus to be reached.

In particular:

- Should the directive clarify or not what is to be intended as communication to the public by platforms that host and make available user-uploaded content [the original proposal does not clarify]?

- Should the directive exclude that platforms that make acts of communication to the public are eligible for the safe harbour under Article 14 of the E-commerce Directive [the original proposal refers to the safe harbour for hosting providers]?

- If platforms are liable for unauthorized acts of communication to the public, should there be some sort of "targeted liability mitigation provided for to avoid potentially excessive impact on platforms storing and giving access to user uploaded content" [this could be so, assuming the ineligibility of such platforms for the Article 14 E-commerce Directive safe harbour]? 

- If there is a clarification of the communication to the public, should there also be an obligation to apply measures [likely including pro-active filtering - on this point it might be interesting to look at this and bear in mind the recent EU Commission's Communication on Tackling Illegal Content Online, which includes reference to the so called 'good Samaritan clause' (p 3)] as an additional provision, and if so, should it apply to the same service providers as those concerned by the clarification on communication to the public or should the scope of this obligation be different and potentially wider? 

Where to write one's
own thoughts and responses

Finally, Bulgaria is asking whether a better option could be NOT to include in Article 13 any language relating to communication to the public and safe harbours and include, instead, a new recital that would recall the existing principles of EU law which are relevant to determine the conditions under which user-uploaded content platforms engage, based on existing case law of the Court of Justice of the European Union, into a copyright-relevant act and are not covered by the limited liability in Article 14 of the E-commerce Directive.

Conclusion

From this document released by the new Bulgarian presidency it would appear that neither Article 11 nor Article 13 are going anywhere, Council-wise. 

With regard to Article 11, the idea of replacing a right in favour of press publishers with a presumption of representation seems to have been abandoned. 

There is greater room for manoeuvre in relation to the value gap proposal, and on crucial aspects indeed. 

Let's see what happens over the next few months, also at the Parliament level. The JURI Committee is now expected to vote on the report by MEP Axel Voss (who has replaced MEP Comodini-Cachia) on 26-27 March (the January date has been in fact postponed once again), and it will be crucial to see what the report proposes, and how the vote goes.