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Copyright - digging in for the detail

The Council of Europe has released another draft position on the impending EU Copyright Directive. We're analysing it. For background see here.

Meanwhile the parallel vote in the European Parliament's Legal Committee was reported today to have been postponed until 25 January 2018. Each time it's delayed, the chances of its positive provisions taking effect in the UK are reduced...

Updated 1 December 2017

There are no very significant changes in this draft. Mildly worthy of note:

  • There is a lot more in the preamble and in the actual draft Directive about "extended collective licensing" (ECL) schemes. This would forestall challenges to the schemes in the Nordic countries (and to any that may eventually be authorised under the 2014 amendments to UK law). This is on balance a good thing because it counters a feeling that use for "the purposes of illustration" by educational establishments may be permitted without compensation in some member states.
  • The provisions on applying such ECL schemes to works judged, after reasonable inquiry, to be "out of commerce" have been refined somewhat. If these made their way into UK law they would not be disastrous, given the safeguards already built in to the ECL provisions here.
  • Attempts in the preamble and in the actual draft Directive to clarify when online services have a duty to take care over copyright infringement look likely to lead to court cases over the meaning of the phrase "signficant amounts of copyright works".

    We see signs that anti-copyright lobbyists are turning their attention to this - directly in the interests of certain online service providers. The current draft requires service providers to "to prevent the availability on their services of works or other subject-matter identified by rightholders". It specifies that it must do so "without prejudice to the freedom of expression and information of their users and the possibility for the users to benefit from an exception or limitation to copyright". That seems like a reasonable safeguard against service providers taking down material that should be reported in the public interest... though the actual effect would depend on how they foul up their technology.

    What service providers such as Facebook or Twitter are upset about is, we think, the provision that in certain circumstances they would be regarded as "performing an act of communication to the public or an act making available to the public" when they... do just that with works uploaded by their users. This seems to be an attempt to sort out some unfortunately confusing judgements in the Court of Justice of the European Union (such as Svensson, for afficionados).

  • There is still no agreement among member states on the proposal that newspaper publishers should have a new right enabling them to seek payment from online services - the matter that previously got anti-copyright lobbyists all excited.
  • The threat to Public Lending Right (discussed here) is still in the draft. UK officials are mystified about it.
  • A reference to "text and data mining" in the preamble removes mention of it being permitted for not-for-profit purposes. This may be one to watch: we expect that some large internet corporations expect to re-purpose legislation intended to permit, for example, academic reviews of drug safety studies to cover whatever they like. The actual clause in the draft Directive refers to permitting data mining "by research organisations and cultural heritage institutions in order to carry out text and data mining of works or other subject-matter to which they have lawful access, for the purposes of scientific research".