After three days of discussions, the representatives of the three institutions of the Union finally agreed on Wednesday evening on a common version of the text.
The creative process was particularly painful. After three consecutive days of closed negotiations, copyright reform is now close to the epilogue since it was the subject, Wednesday evening, of a provisional agreement between the European institutions.
Accused of all ills in recent months, the text introduces two flagship measures to rebalance the balance of power between rightholders and platforms: a new neighboring right for newspaper publishers, and new obligations for publishers. major sites in the fight against illegal content. This is accompanied by a clause in favor of "appropriate" and "proportionate" remuneration. European co-legislators hope to bend American platforms, which they accused of siphoning advertising revenues generated by content created by others.
A change in approach to liability
The new obligations of online platforms are the most important change in this text. Currently, YouTube and others are considered to be mere hosts, which only requires them to remove the illegal content posted. In the future, only small start-ups will benefit from this flexible scheme, as suggested by the Franco-German couple. The others, those which give access to a large number of contents loaded by their users and which benefit from them, will have their obligations strengthened. As a general principle, they will have to enter into license agreements with rights holders, as is already the case for the vast majority of music catalogs. If they do not succeed, they will be exempted from liability provided they prove that they have done their utmost to prevent the presence of a work on its interface and they acted quickly after a report. The platforms' efforts will be judged by proportionality criteria such as the size and number of works loaded.
A new right for press publishers
The other important aspect of this reform is the creation of a neighboring right for news media publishers and news agencies, which will have to be "shared" with journalists. This new two-year right will allow news publishers to decide how and at what cost their content can be reused by websites. They will be free to waive this right. On the other hand, the agreement provides for the sharing of hyperlinks to press articles accompanied by individual words or very short excerpts Would remain free.
This new provision should sign, in France, the abandonment of the bill proposed by several senators PS who pleaded for the introduction of such a right (and whose duration was initially set to fifty years, before being reduced at twenty years old by the Senate). But it should give a boost to the moribund systems in place in Europe. This neighboring right already exists in Germany, where the law is currently suspended as long as the Court of Justice of the European Union (EU) has not ruled on an allegation of a procedural violation. It is also supposed to apply in Spain, but Google News has refused to negotiate and closed its service on Spanish territory.
A work of art for some, a monster for others
Two camps clashed continuously during the negotiations. On the one hand, the pro-reforms that bring together the cultural and creative industries, as well as management organizations of collective works. And on the other hand, those who oppose it and who bring together digital rights advocacy groups, consumer organizations or the platforms themselves. In recent months, Google has not hesitated to harden the tone, threatening to close if necessary its information aggregator service and leaving doubts about the future of thousands of YouTube channels.
The "memes" and the gifs will continue to circulate
For Alain Strowel, law professor at UCLouvain, lawyer in Belgium and author of the book When Google challenges the right (Ed Larcier, 2011), " the new legal framework should allow collecting societies and rights holders, who judge the amounts paid by YouTube insufficient, to go to court for a blocking of YouTube. As a result, this could, but nothing is certain, result in either more withdrawals or larger payments. "
However, the compromise provides for a series of safeguarding measures: in any case, it prevents the platforms from being generalized filtering requirement ". The "memes" (cultural contents hijacked in a humorous way) and the "gifs" (animated image) can continue to circulate freely on the Web, thanks to the exceptions for quote, report, criticism, caricature, parody or pastiche of which the contents benefit created by users. Thus, the video of a wedding with music in the background will be allowed if a license has been obtained by the platform for this music, since the license agreements also cover the content generated by users. Finally, the text provides for a recourse mechanism allowing users to challenge the removal of their loads.
All these provisions will be submitted to the European Parliament and the Council in the coming weeks, during which this issue is not immune to new developments.