Europe’s controversial copyright reform turns 1 amid ongoing tensions

So far, France is the bloc’s only testing ground for the new rules targeting Silicon Valley giants.

One year after the EU passed a controversial overhaul of online copyright rules, only one country — France — has implemented the changes and big platforms are locked in battle with right holders over how much they should be paying for content.

Battered by the coronavirus lockdown across much of Europe and the United States, creative industries and press publishers are struggling to keep afloat, looking at the copyright reform as one of the ways to recover financially in the longer term.

While much of Europe has yet to transpose the EU rules, a recent decision from France’s competition authority proved the legislation does have teeth, as Google was ordered to negotiate “in good faith” with French publishers and news services over licensing fees for press content.

For Andrus Ansip, the former European Commission vice president for digital, who was in charge of the reform in the last mandate, the fact that parties in the all-out lobbying battle are now on speaking terms is a sign of progress.

“The neighboring right for press publishers and the value gap [between revenues made by platforms and money paid to rights holders] are still controversial, but parties who were not able to communicate before the copyright agreement was reached are now talking to each other,” said Ansip, who’s now an MEP for the Renew Europe group.

“But there are still tensions,” he conceded.

The two-and-a-half year battle pitted tech giants such as Google and digital rights activists against music labels, press publishers and the audiovisual industry over how money is generated from online content and how to preserve fundamental rights on the internet.

Under the copyright reform, tech companies such as Google’s YouTube have to negotiate licensing agreements with record companies and collecting societies to publish their content. They also face new obligations to monitor their sites and remove copyright-infringing content.

The reform also grants press publishers a neighboring right, meaning they can seek remuneration when their content is displayed on platforms such as Google News. (Axel Springer, POLITICO Europe’s co-owner, is an active participant in the debate.)

One year after the rules were set in stone, an unexpected pandemic has hit the creative industries badly, prompting calls in countries such as Germany for a swift implementation of the reform as part of the long-term solution to help the music industry.

“If governments work on the principle that we will have to re-start the economy — and that culture is part of it — then [implementing] the copyright directive makes a lot of sense,” said Véronique Desbrosses, the general manager of Gesac, a lobby group representing collecting society in Brussels.

French laboratory

A year after the directive was adopted in Brussels, France is the only European country to have partially transposed it.

A lack of harmonization in the implementation within the bloc, because of the very nature of a directive, is not “helpful,” said Axel Voss, the German MEP from the European People’s Party who was in charge of the negotiations for the European Parliament.

“What is helpful however is that France is fighting with big companies, including Google, to make the reform beneficial for rights holders,” he added.

France has indeed become a testing ground for the reform.

In October last year, Paris adopted a neighboring right for press publishers (the so-called Article 15), but Google decided to change the way press material appeared online instead of entering into licensing agreements.

In early April, France’s competition authority ordered the U.S. tech giant to engage in talks with the press industry, which should result in a “remuneration” scheme for the publishers — welcome relief for an industry hit hard by plummeting ad spendings amid the coronavirus crisis.

“This decision will set a standard for other European countries,” said Eleonora Rosati, an associate professor in intellectual property law at the Stockholm University.

Richard Gingras, Google’s vice president for news said that “since the European copyright law came into force in France last year, we have been engaging with publishers to increase our support and investment in news.” The company added it would comply with the competition authority’s decision “while we review it and continue those negotiations.” In the meantime, leading French media Le Monde has signed a partnership with the U.S. tech giant to boost subscriptions online.

Landmark cases are also expected in Germany, but prompted by one of the reform’s staunchest opponents.

Julia Reda, the former German MEP who negotiated the reform on behalf of the Greens group, announced earlier this week that she is working on a project within the German civil rights NGO Gesellschaft für Freiheitsrechte that will bring lawsuits and support people in copyright court cases where fundamental rights are at stake.

“We’re already preparing lawsuits for when [the reform] is adopted [in Germany],” she said.

The coronavirus effect

The copyright reform is also not immune to the coronavirus effect, which has reshuffled the governments’ priorities and pushed everything not related to crisis-management down the list.

“It will take some time for the directive to be implemented in all member states. Because of the coronavirus crisis, I think not so many people are thinking about copyright,” Ansip said.

In Brussels, a so-called stakeholder dialogue organized by the Commission between tech platforms, right holders and NGOs to discuss implementation was postponed sine die. In Luxembourg, an opinion in the Court of Justice of the EU about YouTube’s legal responsibility for copyright infringement was also pushed back.

Poland’s legal challenge against the text’s Article 17 (on content filtering) is still ongoing.

But the pandemic also hit the creative sectors as movie theaters have closed, festivals and concerts have been canceled, music streaming have dropped and ad revenues have plummeted, highlighting the limits of ad-based models for the press industry and the need for additional revenue streams.

“One of the things that the virus crisis has done is to expose the fragility of the ad-funded model of quality journalism online, which is under pressure because the majority of the ad revenue goes to the platforms,” said Angela Mills Wade, the executive director of the European Publishers Council. (Axel Springer is a member.)

In end-March, Facebook announced it would invest $100 million to help media struggling because of the coronavirus crisis.

Lessons learned

Back in Brussels, some of the main protagonists in the European Parliament, such as France’s Jean-Marie Cavada and Germany’s Julia Reda, have left. But the copyright reform’s shadow still lingers.

“There was no point in staying in the Parliament if I wanted to work on copyright. People are tired of it. They don’t want to re-open the can of worms,” said Reda.

Indeed, when they talk about the Digital Services Act (DSA) — an upcoming piece of legislation that will set rules about how platforms police content online — MEPs are careful not to revive the wounds of an emotional debate that divided political groups, and even national delegations, in the last mandate.

“The copyright directive allows pre-filtering: We’re not going to touch it,” Alex Agius Saliba, one of the rapporteurs for the DSA in the Parliament, recently said.

On the tech side as well, there is no willingness to relive the copyright war.

For the DSA, online platforms have changed their lobbying strategy and went from a defensive approach to a proactive one. In early January, tech lobby Edima, which represents Google, Facebook and Amazon, released proposals on how to regulate online content.

The organization said it wanted to be “a constructive driver of the Digital Services Act discussions in Brussels.”

A tech insider who spoke on condition of anonymity said platforms have understood after the copyright debacle that they need to be part of the solution in the policymaking process.

“If you’re not at the table, you’re on the menu,” the insider said.

Click Here: Cheap QLD Maroons Jersey