European Parliament failing to support copyright reform

(Originally published at EDRi-gram: https://edri.org/european-parliament-failing-support-copyright-reform/)

26930549_f1286f7ef1_o(Image by EnriqueB: https://www.flickr.com/photos/enriqueb/ )

Everyone is talking about EU copyright reform. However, in the European Parliament, everyone is having the same discussions on enforcement that they were having ten years ago – and talking about stopping any reform.

The Draft Report “Towards a renewed consensus on the enforcement of Intellectual Property Rights: An EU Action Plan” (2014/2151(INI)) presented by Member of the European Parliament (MEP) Pavel Svoboda reacts supportively to the rather bland, regressive and unimaginative Commission Communication of the same name. Sadly, Mr Svoboda seems to be choosing to support the mistakes that the Commission’s view that the failures of the last ten years should be the model for the next decade.

The Draft Report mixes, sometimes in the same phrase, totally different issues in Intellectual Property Rights (IPR), such as counterfeit goods and online content. This leads him to write that “the enforcement of intellectual property rights plays a significant role in ensuring consumers’ health and safety”, although this connection seems somewhat vague. Svoboda also uses terms which we already rejected in the Communication on which this Report is based, and talks about the “commercial scale infringement” that even the Commission publicly admitted that, particularly the online environment, would also require a clearer definition of “commercial scale”, although everyone now appears to have forgotten this.

More worryingly, the Report appears to call for the implementation of certain enforcement measures which do not require public or judicial supervision. The Report refers to “due diligence” procedures, without being clear about whether it is talking about online or offline, where this would have very different meanings. It speaks supportively of “follow the money”, without any particular definition or understanding of what this might be. The whole Report might be understood as wholesale privatisation of regulation of freedom of communication. Or not.

The Report also applauds the work of the Observatory on IP Infringements, presumably because the European Commission asked it to. One would have to search for a long time to find anything of high quality produced by the body since its inception.

There are, however, some positive aspects of this Draft Report. For example, it states that there is the need for more information about what citizens are allowed to do with protected content. EDRi has been calling for a modernised and harmonised system for copyright, since the system which is still in force is not in line with the uneeds of users in the 21st century. Svoboda also expresses his concerns on the “divergent interpretations of certain provisions of the directive result in differences in its application in the Member States”. Indeed the fact that national courts have been implementing the IPR Enforcement Directive in order to clarify what the legislator could not clarify, which is why reform is needed. The situation is that critical that, if the EU legislator just took the opportunity to make sense of the copyright regime, it would be already a victory.

The Opinions proposed by the Committee on Culture and Education (CULT) and Internal Market and Consumer Protection (IMCO) do not give any more hope. We can find in both of them the same references to the same vague and misleading terms (“commercial scale infringement”, “follow the money approach”, etc) and reference to the same statistics that EDRi and the Copyright for Creativity (C4C) coalition have already definitively debunked to “describe” the impact of infringements. The amendments tabled by MEPs in the CULT committee are beyond parody. One, for example, removes demands for statistics to be reliable, precised and unbiased!

Draft Report: Towards a renewed consensus on the enforcement of Intellectual Property Rights: An EU Action Plan” (2014/2151(INI))
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52014DC0392

Roadmap for renewal of IPRED
http://ec.europa.eu/smart-regulation/impact/planned_ia/docs/2011_markt_006_review_enforcement_directive_ipr_en.pdf

CULT Opinion
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-544.344+01+DOC+PDF+V0//EN&language=EN

CULT Amendments
http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&reference=PE-544.345&secondRef=01&language=EN

IMCO Opinion
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-546.649%2b01%2bDOC%2bPDF%2bV0%2f%2fEN

Copyright for Creativity – Myths and facts
http://copyright4creativity.eu/myths-facts/

(Contribution by Diego Naranjo, EDRi)

The “Google tax” that is not a Google tax

By Diego Naranjo

The new European Commissioner with responsibility for “digital agenda” issues, Guenther Oettinger caused a stir in the media recently when he raised the possibility of introducing “ancillary copyright” payments, requiring search engine providers to pay for displaying copyrighted materials on their sites, on the EU level. The press was all of a sudden full of talk of a “Google tax”.

There are two problems with the “Google tax” term. In fact, there is one problem in each of the words:

Firstly, the implementation of ancillary copyright in Germany is such that Google does not actually pay. As others have explained (see Julia Reda’s article), the measure has already embarrassing failed consequences for the the publishers that lobbied to get it adopted. The most recent case happened in Germany, where the rights management firm VG Media asked Google a payment because of the news snippets from German newspaper publishers which are offered in its Google News. Google’s unsurprising response (having followed the same approach in Belgium, apparently unbeknownst to the German government) was to delete from Google News all the content related to VG Media associates. The sites in question had been put online in order to be read and not being on Google News would result in significant numbers of visitors being lost. As a result, VG Media decided to grant a “free license” to Google. Google will not have to pay anything to do the same it was doing before. On the other hand, all of the other companies in the market offering paid or free news snippet services, but that do not have Google’s market dominance, will have to pay the… “Google tax”.

Secondly, it is not a “tax”. A tax is, according to Oxford dictionary, “(a) compulsory contribution to state revenue, levied by the government on workers’ income and business profits, or added to the cost of some goods, services, and transactions”. The “Google tax” does not contribute to the State revenues in any sense, since it is a payment between different private companies.

It remains to be seen whether Commissioner Oettinger is really determined to make the same mistakes at the EU level that have already been made in Germany

Julia Reda: An EU-wide “Google tax” in the making? (28.10.2014)
https://juliareda.eu/2014/10/an-eu-wide-google-tax-in-the-making/

French publishers want in on German plan to force everyone to pay to link to news (07.09.2014)
https://www.techdirt.com/articles/20120906/02102920291/french-publishers-want-german-plan-to-force-everyone-to-pay-to-link-to-news.shtml

Spain’s “Google tax” gets green light with sole support of Popular Party (30.10.2014)
http://elpais.com/elpais/2014/10/30/inenglish/1414688575_232202.html?rel=rosEP

Legal Service Opinion on CJEU Data Retention ruling

(Originally published at EDRi’s website: https://edri.org/legal-service-opinion-on-cjeu-data-retention-ruling/)

The European Parliament (EP) legal services last week presented an opinion on the Court of Justice of the EU’s (CJEU) ruling on the Data Retention Directive (DRD) and its implications. The opinion, after restating the principles that are essential to permit any interference on fundamental rights (proportionality, justification and necessity), answered specific questions raised by the Civil Liberties, Justice and Home Affairs.

On the issue of existing mass surveillance mechanisms such as on Passenger Name Records (PNR) and the Terrorist Financing Tracking Programme Agreement (TFTP), the opinion states that the only directly affected legal norm is the Data Retention Directive itself. Other norms covering similar data retention schemes will have a “presumption of legality” that could be repealed “on a case-by-case basis in the light of the particular circumstances of each case”. This rebuttal could be made either via national courts that refer them to the CJEU in accordance with Article 267 TFEU, or via asking the Commission about the legality of existing EU acts.

In relation to similar legislative proposals that require mass data storage, the opinion states that EU law must respect the red lines set by the CJEU in this judgment. Thus, EU PNR and Entry/Exit System will fall clearly under the category of acts that need to be assessed in the light of this ruling and need to respect the principles of proportionality and necessity. International agreements that have similar consequences on personal data would also fall under this category, and the CJEU could be asked if such agreement is in line with EU law. This procedure was used last December in relation to the EU Canada PNR agreement.

As for the enacted national laws applying the Directive, the opinion says that the judgment produces a twofold effect: On one hand, Member States have no obligation to retain data by service providers and therefore they can repeal existing laws without breaking EU law. On the other hand, if a Member State decides to keep the legislation, “all national measures providing for data retention in connectionwith the provision of publicly available electronic communications services” would now be covered under Art.15(1) of the e-Privacy Directive. These measures will need to frespect Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and the principles of proportionality and necessity.

Lastly, the legal opinion mentions the situation of some of the national laws implementing the Directive. In Bulgaria, Romania, Germany, Cyprus, Czech Republic these laws were declared invalid even before the CJEU gave its judgment. In some other Member States they were declared invalid after the judgment, as in the case of Austria and Slovenia and partially in Poland.

The European Parliament has provided clear guidance on why the DRD was annulled and the effects of the judgment on national and European law as well as on international agreements established by the EU. The opinion covers the jurisprudence of both the CJEU and the European Court of Human Rights (ECtHR) on the existing safeguards with regard to surveillance and how principles of necessity and proportionality need to be met for such an interferences on fundamental rights. However, Member States appear to think, exploiting every available atrocity, that international courts, national courts and EU institutions got it all wrong..

In a joint statement, several EU Ministers of Interior called for the new measures: “Partnership” of Internet Service Providers (ISPs) regarding content that should be removed (a.k.a. “privatised law enforcement”) and “stepping up the detection and screening of travel movements by European nationals crossing the European Union’s external borders”. Companies like Facebook, that previously threatened to block Charlie Hebdo’s Facebook page would be used to enforce more censorship.

Tthe joint statement says that this time they need the “constructive approach” of the European Parliament, for the adoption of PNR measures, for which no evidence of necessity or proportionality has been provided.

For those attending the Privacy Camp “Data Retention and PNR” workshop next week (https://privacycampbrussels.wordpress.com/), we will need to be ready with concrete actions to stop this new attack on fundamental rights and freedoms.

European Parliament Opinion on the Court of Justice of the EU’s ruling on the Data Retention Directive (07.01.2015)
https://s3.amazonaws.com/access.3cdn.net/27bd1765fade54d896_l2m6i61fe.pdf

Joint Statement by Minister of Interior after the attack on Charlie Hebdo Offices (11.01.2015)
https://eu2015.lv/images/news/2015_01_11_Joint_statement_of_ministers_for_interrior.pdf

(Contribution by Diego Naranjo, EDRi)