26 March 2019

EU Copyright Directive Adopted: The Fight for Libraries and Freedom of Speech Passes to the National Level

Today, the Plenary of the European Parliament adopted the Copyright Directive by a significantly reduced margin compared to previous votes. It will now be for libraries at the national level to make the most of new possibilities, while continuing the fight for freedom of expression.

The digital age has brought a rapid evolution in the way libraries can support their users.

IFLA has argued, around the world, for copyright laws that reflect these changes, both in recognising new uses, and in ensuring that library activities cannot be prevented by contract terms or digital locks.

While the draft Directive on copyright delivers on many of these priorities, it comes with a number of dangerous and poorly considered measures which pose a threat to freedom of expression, in Europe and globally.

There is comfort to be taken both from the much smaller majority in favour of the Directive this time (74, compared to 212). A previous motion in favour of taking separate votes on the most contentious articles was defeated by just 5 votes, and would have been successful but for mistakes by MEPs.

With final agreement of the Directive now likely, the focus will pass to national governments. They will have to take crucial decisions about how to implement the new rules. Libraries will need to make themselves heard in order to maximise the good, and fight the bad.

Gerald Leitner, IFLA Secretary General said:

Today’s vote in the European Parliament is disappointing, but we will not be giving up on freedom of speech. I look forward to working with our members to ensure that libraries across Europe benefit fully from the positives in the Directive, and to limiting the harm caused by Article 13. 

Putting Fear before Free Speech

The most high profile parts of the Directive aimed to deal with the perceived dominance of major internet platforms.

Article 11 (15 after renumbering) underlines that copyright can exist even in short ‘snippets’ of text from newspapers or other news sources. This affects, in particular, those used on news aggregators to offer readers enough information to know whether to click down or not.

While scientific journals are fortunately excluded from this provision, the article threatens many of the sites with which libraries work, and which help in promoting media literacy.

Article 13 (17 after renumbering) forces all by the youngest platforms to implement proactive filtering of content uploaded by users in order to prevent infringing material from appearing online.

While proclaiming to protect freedom of speech, the well-documented flaws of automatic filters inevitably means that legitimate free expression is at risk. While scientific and educational repositories are excluded, the same does not go for other platforms used by libraries.

IFLA, alongside a broad coalition of NGOs and academics, had called for its deletion.

Both articles, in fact, will likely benefit the major platforms, who are the only ones in a position to comply with the new rules. As such, they may even make competition issues worse.

Useful Steps for Libraries

Fortunately, libraries will see gains from other parts of the Directive.

A new exception will allow libraries, alongside research and other cultural heritage institutions to carry out text and data mining on works to which they have access. Others with legal access will be allowed to do the same, unless the rightholder has explicitly opted out.

Another new exception will clarify that libraries can preserve works in any format, offering welcome certainty for digitisation projects, including those involving cross-border collaboration.

An innovative measure ensures that where there are no collective management organisations in a given country and sector, libraries can use an exception to digitise and make available out-of-commerce works.

There is also new support for educational activities in libraries run under the authority of an educational institution, with the use of digital tools also allowed under an exception where adequate licences do not exist.

Finally, and in an important precedent, the above exceptions are, for the most part, protected from being blocked by contract terms or technological protection measures.

We will follow up with a more detailed analysis of the provisions and the changes they bring to cultural heritage institutions.

What Next?

The Directive needs to be implemented into national law within two years. This means that each Member State will need to open up a legislative process to make the necessary changes to their national law.

This will be importance, given the lack of detail in the Directive, and the need to take crucial decisions about how things will apply in reality.

Advocacy efforts to ensure the best results possible will be key at the national level. IFLA will engage with its members to assist and ensure this is the case.

CLM (Committee on Copyright and other Legal Matters), Access to information, Europe, Copyright, Freedom of expression

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