A new Copyright Legislation for Europe. How will this impact Open Access?

On March 26, the European Parliament adopted the Directive on Copyright in the Digital Single Market, after several years of development and negotiations marked by intense lobbying from all sides. With a final agreement little more than a formality, this new legislation is poised to impact the research community and change the environment around open science.

A much-needed update in the digital age

The digital age has transformed the environment in which researchers produce and share knowledge. At risk of becoming irrelevant, European copyright rules were due an update. This is necessary to bring them up to speed in the face of technological advancements, and to offer an adequate regulatory framework that encourages creation and innovation while preserving freedom of expression and fostering research, education, as well as access to information and cultural heritage.

Several meaningful improvements

SPARC Europe welcomes many of the new measures in the Copyright Directive that representatives of education, research and cultural heritage institutions have worked hard to achieve over the last many months – and we have actively supported them. They will positively impact Europe’s library, education and research community.

•       Articles 3 and 3a introduce copyright exceptions for text and data mining, which form the basis of Artificial Intelligence.
•       Article 4 facilitates digital and cross-border teaching activities.
•       Article 5 allows digital preservation of in-copyright works including the use of digital preservation networks within a member state and across borders.
•       Article 6 deals with contract override and ensures that the exceptions are not pre-empted by contractual terms or technological protection measures.
•       Articles 7-9a create mechanisms that allow for the digitisation of in-copyright but out-of-commerce works through extended collective licensing or by way of an exception.
•       Article 10b, dealing with works in the public domain, helps achieve the public interest mission of cultural heritage and research institutions in Europe.

To Open Access in particular, we led on helping protect Open Access in Articles 11 and 13 and we succeeded in what we set out to achieve.

•       Article 11: Academic and scientific publications are excluded from the scope of Article 11, which means that these publications are not subject to the new right. Hence, sharing those publications online will follow the same rules as before.
•       Article 13: Not-for-profit scientific and educational repositories are exempt from the scope of Article 13. Therefore, they are not subject to the new licensing rules that place the onus on platforms to self-monitor uploaded content for copyright infringement. As the new liability ruling does not apply to them, they may continue to operate under the existing notice-and-take-down regime.

Two persisting concerns

However, SPARC Europe remains apprehensive with regard to Article 11 and 13, despite the important safeguards gained within those two contentious provisions, owing to SPARC Europe’s dedicated lobbying efforts. SPARC Europe had asked MEPs to vote for the Directive but had called for the deletion of Article 11 and 13, to no avail. In fact, a separate vote on those was missed by a margin of only five votes, and would have indeed been held, had it not been for a handful of MEPs unintentionally pressing the wrong button when they voted (no joke). As no after-the-fact corrections are allowed, the error affected the final result.

Article 11 [now 15] – the “link tax”

Article 11 provides an exclusive right for press publishers when their press publications are shared online, particularly via news aggregators. This means that press publishers are able to charge a fee when their publications, or parts thereof, are copied and shared online. This new right could even subsist in short “snippets” of text from newspapers or other news sources.

Thanks to SPARC Europe relentlessly pushing to preserve the interests of Europe’s research community, academic and scientific publications are excluded from the scope of Article 11.

Article 2(4d) indeed provides the definition of “press publications” and exempts periodicals published for scientific or academic purposes.

Article 11(1) excludes “private or non-commercial uses of press publications carried out by individual users.” This is positive for individual researchers, although the exemption does not explicitly cover uses carried out by education, research and cultural heritage institutions, which we had requested in order to safeguard seamless access to information. The consequences on research are hard to foresee, as private and non-commercial uses are yet to be given a clear interpretation, but this is likely to result in a hurdle in access and sharing of press publications online.

Fears remain that the additional right will deter communication of news, affect the free flow of information, obstruct online licensing, and negatively affect authors.

Article 13 [now 17] – “upload filters”

Article 13 amends the liability of online content sharing service providers (major internet platforms such as YouTube, Facebook, Instagram, but also many others) for user-generated content into a shared responsibility of rights holders and service providers. Under this new legislation, information society service providers have the obligation to ensure that all copyrighted content is licensed before it is uploaded. In practice, technology platforms have to sign licensing agreements with musicians, authors and news publishers in order to be allowed to post their copyright works online. At the same time, it forces platforms to implement proactive filtering of content uploaded by users in order to remove infringing material.

Fortunately, after continued lobbying efforts, SPARC Europe managed to ensure that not-for-profit scientific and educational repositories are exempt from the definition of “online content sharing service providers” and therefore of the scope of Article 13. But the many other platforms used by researchers will have to abide by the new, highly coercive rules.

Generally, Article 13 creates a costly and burdensome liability regime and risks hindering digital innovation and user participation. The overall effect on the sharing and reuse of content is concerning. Given the vast amount of content online, automated scanning and excluding of content will be patchy at best and risks running counter to the principle of freedom of expression embedded in the copyright system. Indeed, many dread that “filtering” will be unable to spot legitimate uses of works, such as quotation, parody or criticism.

The way ahead

The Directive, after being voted on by the Council (which will in all likelihood be a formality) needs to be implemented into the national law of each Member State within two years. With a lot of room for interpretation in the language of the Directive, Member States have an opportunity to develop national legislation that will be adapted to their particular circumstances. Major challenges are likely to be addressed before the courts.

SPARC Europe stands ready to support the research community in understanding the changes the new Directive brings and to pursue lobbying efforts at the national level to ensure that Open Access and Open Science continue to thrive.