On 16 January 2018, the Bulgarian Presidency of the EU Council sought guidance from the Permanent Representatives Committee (Coreper) regarding the long-debated Draft Copyright Directive. The queries focused on two issues that are still controversial: the introduction of an ancillary copyright for press publishers (Article 11 of the draft) and the establishment of new monitoring obligations for certain online service providers (the ‘value gap provisions’) (Article 13 of the draft).

Since then, Coreper has shared its view with the EU Council. Based on Coreper’s comments, the Council Presidency has drawn up a discussion paper, published on 6 February 2018, expressing its current position. The Council’s view may be summarized as follows:

Article 11: Ancillary copyright for press publishers

The paper opens with the statement that both alternatives previously discussed in the context of Article 11 of the draft directive are feasible and still on the table: the creation of a “genuine” ancillary right for press publishers and/or the statutory presumption that press publishers may enforce certain rights.

Coreper’s comments further prompt the Presidency to propose three specific revisions concerning a possible ancillary copyright: (1) so-called “snippets” shall not be exempted from the scope of such ancillary right, (2) the latter shall be limited in such a way that it may only be enforced against ISPs and not against individual users, and (3) the duration of the right (so far 20 years) shall be subject to review at a later date. The Presidency’s paper contains specific drafting suggestions on how the criteria could be phrased in the eventual directive.

Article 13: Value gap and new monitoring obligations

Regarding Article 13 of the draft directive, the Presidency’s discussion paper includes two key suggestions: defining the services affected by the new obligations in order to target precisely the services covered and, secondly, clarifying the conditions for when such a service provider is ‘communicating to the public’. The Presidency suggests that a service would be ‘communicating to the public’ “when it plays an indispensable role and intervenes in full knowledge of the consequences of its action to give the public access to copyright protected works or other protected subject matter uploaded by their users.” In these circumstances, the ISP would not be able to rely on the liability privileges set out in Article 14 of the E-Commerce Directive 2000/31. However, the paper indicates that the Presidency still sees the need for further discussion of the details, in particular whether there should be some limitation of liability, under certain conditions.

Outlook

Bottom line, we have to admit that the Presidency’s current paper offers little reason to expect things to move rapidly to a final compromise now. It is apparent that all the proposals previously discussed are still on the table. Even though the drafting suggestions made for Article 11 of the draft do make sense, the main question is whether to go for an ancillary right or a statutory presumption. From an economic point of view, it seems to be fair to say that the second option could very well work for press publishers. Legal certainty could be achieved and the publisher’s position would still be strengthened.

With regard to Article 13 of the draft, it is doubtful whether the proposed definition of affected ISPs could in practice lead to clear means of distinguishing services and thus to more legal certainty. Further, the concept of ISPs being primarily liable for ‘communicating to the public’ in relation to user-uploaded content remains under discussion. If the Council’s current proposals are agreed this would have a significant impact on platforms. It is essential that this and the relationship between the exploitation of copyright and the benefit of e-commerce privileges are clarified. A new definition of what is a ‘communication to the public’ is, however, not to be recommended. At least, not if it adds further ambiguity to an already complex area.

It is again up to the internal copyright working group to come up with a (hopefully) final compromise. At the meeting on 12 February 2018, the group reportedly did not make much progress in this regard.