Zauberlehrlinge

Julia Reda has a two part (1|2) post on the Kluwer Copyright blog in which she examines (and ultimately rejects) the claim made by rightholders that Article 17 of the DSM Directive is a mere clarification of existing Court of Justice case-law on communication to the public and intermediary liability. In the first part she examines the possible motivations rightholders could have for portraying Article 17 as a mere clarification of existing law that does not really change anything.

While all three of her theories have some merit, for me her third explanation is the most interesting one:

The third possibility is that rightsholders find themselves in the position of Goethe’s sorcerer’s apprentice. While lobbying for a new liability regime for hosting providers may have initially seemed like a good idea, they lost control of the legislation they had advocated for. Other interest groups, most notably internet users, became more vocal during the legislative process than initially expected. After the European Parliament rejected the Legal Affairs Committee’s version of the draft DSM Directive in the summer of 2018 over fundamental rights concerns, concessions had to be made and user rights had to be strengthened in order to secure a majority for the Directive in Parliament.

The end result, which for the first time establishes users’ rights to the use of copyrighted content and makes several exceptions related to freedom of expression mandatory, may cause some rightsholder groups to question whether they were better off under the old legal regime. […]

This observation aligns pretty well with an insight that has emerged more and more clearly over the past few months fn working on the implementation of Article 17:

By now it is pretty clear to me that during the final phase of the legislative battle over the directive (between January and March 2019) both sides remained stuck in their entrenched positions vis a vis Article 13, without really noticing that as a result of the fierce opposition by users, and the determination of rightholders to get the directive adopted at any cost, the internal balance of Article 13 had shifted more and more in the direction of codifying user rights.

In the end, the final version of the Article does is quite far removed from the original proposal¹ and includes a surprising number of elements (mandatory exceptions for quotation, pastiche, parody and caricature, strong procedural safeguards against over filtering) that would have never made it into the law if not introduced as concessions for getting Article 13 adopted. Even with the benefit of hindsight people on both sides of the debate seem to prefer not to acknowledge this, because this outcome is hard to reconcile with the quasi-religious belief systems that animate most participants in copyright policy debates.