As expected, 2018 has been a crucial year for the progress of the EU copyright reform and what is rightly considered the most important draft piece of legislation in the group of initiatives released under the umbrella of the EU Commission’s Digital Single Market Strategy: the proposal for a directive on copyright in the Digital Single Market.
Following the adoption—by both the Council and the EU Parliament—of the respective versions of the directive to be used as a mandate in the context of trilogue negotiations, the final – closed-doors – phase that will eventually lead to the adoption of this new piece of copyright legislation has now begun. Although we do not yet know what the final text of the directive will be like, there are three elements that stand out in the process as we have seen it unfold so far.
First, as has become increasingly common in relation to copyright, the debate has been animated by emotional tones that, in turn, have resulted in the use of emotional terms (‘link tax’, ‘upload filters’). While these strategies have had the merit of bringing technical discussions about copyright protection outside the remit of specialist circles, thus favouring public awareness and engagement with issues that have the potential of impacting on internet users’ experience, they also make it difficult to appreciate the nuances underlying the actual text and implications as resulting from the adoption of new legislative provisions.
Second, the launch and evolution of EU copyright reform plans has suffered from ambiguities and contradictions, which have eventually led one to question what overall vision of copyright the EU wishes to pursue. The case of text and data mining (Article 3 of the draft directive) is telling. It is likely that the beneficiaries of this mandatory exception would be research organizations only. Yet, in its Impact Assessment accompanying the proposal for a directive, the EU Commission outlined how currently in Europe these subjects are not among those that are mostly engaged in text and data mining activities. What is the point, then, of an exception specifically aimed at those that are not really doing what the provision would allow for? The optimistic (na├»ve?) reading is that the EU wishes to stimulate the making of text and data mining in non-business settings too. The cynical reading is that the EU is introducing an exception that will not be used. The bottom-line in both scenarios, however (and this may be the actual take-home point), is that that text and data mining falls within the scope of copyright protection and – to be performed lawfully – rightholders’ authorization is needed.
Third, over time the proposed reform has either lost ambition or its harmonizing mission, ie to create a fully functioning Digital Single Market, has somewhat faded. An example of the former is the initial plan to tackle unjustified geo-blocking also in the copyright field: nothing of this sort is going to happen. An example of the latter is, again, text and data mining. From being a mandatory exception (that is, something that would carry out a substantial and actual homogenization of Member States’ laws), there might now also be an optional exception (Article 3a) that Member States would be free to introduce into their own laws, if they so wished. The question that arises is whether the response to inappropriate (in scope), yet mandatory, provisions (Article 3) is creating further fragmentation in the EU internal market by means of optional side-exceptions (Article 3a).
Overall, this new directive will likely come to be, while also reflecting the heavy legacy of emotional, contradictory and at times irrational tones that have animated the policy and legislative process. Once this has happened, the battleground will move to national implementations and, eventually (as has happened with the other pieces of EU legislation) litigation and referrals to the Court of Justice of the European Union.