Copyright reform: don't throw out the baby with the bathwater

This week will see the final round of negotiations about the EU copyright reform that has been in the making since 2016. During a series of meetings in Strasbourg the negotiators from the European Parliament, the Council and the European Commission will try to find compromises on the last controversial elements of the Copyright in the Digital Single Market directive. If they manage to do this, the compromise will go to a final vote by the European Parliament later this spring. If they do not, the efforts to modernise the EU copyright rules will likely be set back by a number of years.

A lot is at stake for cultural heritage institutions

At this stage compromises have been found for most provisions in the proposed directive. The remaining controversies centre on those parts of the directive that are intended to change the balance between the creative sector on the one hand and online intermediaries on the other: Article 13 (which would change the rules for online platforms that provide access to user-uploaded content) and Article 11 (which would change the rules for search engines and news aggregators that link to news articles). Over the past few days a number of important stakeholders from the publishing, music and film industries, who had so far been supportive of Article 13, have come out against Article 13 and have called for the entire directive to be scrapped. This has increased the chances that this week’s final negotiations will not result in a compromise and that the EU copyright rules will remain unchanged for the foreseeable future.

In this situation, there is a lot at stake for Europe’s cultural heritage institutions. Among the many uncontroversial provisions of the proposed directive are a number of measures that, if adopted, would benefit cultural heritage institutions and the millions of citizens, researchers and educators who make use of their services. These include:

• Articles 3 and 3a which for the first time reflect the data economy we live in, introducing copyright exceptions for text and data mining which forms the basis of Artificial Intelligence.
• Article 5 which allows digital preservation of in-copyright works including the use of digital preservation networks within a Member State, but also across borders.
• Article 5a which would ensure that digital reproductions of public domain artworks will remain for the public to use and re-use, and
• Articles 7-9 which create mechanisms that would enable cultural heritage institutions to make available online or out-of-commerce but in-copyright works from their collections.

Taken together, these articles represent a massive step forward towards a copyright framework that promotes access to culture, research and education and should not be jeopardised by political disagreements over other elements of the proposal. Europe’s cultural heritage institutions have been asking for legal solutions to mass-digitisation that will help us to close the 20th century black hole for more than a decade. The parts of the proposal that have already been agreed by the co-legislators would go a long way towards achieving this goal.

Don’t throw the baby out with the bathwater

Irrespective of what happens to Articles 11 and 13 in Trilogue, policy makers must not ignore the important progress that has been made elsewhere in the Directive to ensure that copyright law in 2019 is fit for purpose and supports access to culture, research and education. In the case that no agreement can be reached on these controversial articles, we urge the Council, Parliament and the European Commission to let the rest of the Directive progress to adoption unhindered.