The European Commission’s legislative proposal for the modernization of copyright has some suggestions for improving the authors’ position but also very worrisome proposals from the point of view of literary authors and translators.
After the Commission gave its proposal for the DSM Directive in September 2016, it has been discussed in the Council of the European Union as well as in three Parliamentary committees: Committee on Culture and Education (CULT), Committee on Internal Market and Consumer Protection (IMCO) and the Committee on Legal Affairs (JURI) which is the main committee responsible for this matter. The negotiations in the Council and the JURI have not yet reached their end.
Despite its good goals the DSM Directive Proposal is problematic in many ways. Article 12 is the most concerning for literary authors: It would give publishers a right to claim a share of the compensations paid for the use of works under exceptions and limitations.
Article 12 is flawed both from a legal and practical point of view: It would transfer rights and income from the weaker to the stronger party, from authors to publishers. This type of EU level legislation would also give a totally wrong signal for the future development of the European copyright legislation.
How did we end up here?
- European Commission gave a proposal for the DSM Directive on 14th of September 2016.
- Committee on Culture and Education (CULT) gave its opinion on the DSM Directive on 4th of September 2017. During the summer the amendments of CULT concerning Article 12 changed to more stricter and harmful. CULT proposed removing the member states’ discretion from Article 12 and adding some amendments that would transfer more rights to the publisher by virtue of EU legislation.
- The compromise proposal by the Estonian EU Presidency on the DSM Directive was made on 30th August 2017. In the proposal the scope of the publishers’ rights has been broadened and an explicit mention of the Public Lending Right (PLR) remunerations has been added to article 12 and recital 36.
- As a reaction to the proposal, the European Writers’ Council, the Federation of European Publishers and the European Council of Literary Translators’ Associations made a joint statement on 28th of September 2017 demanding that Public Lending Rights should not be mentioned in article 12.
- The European Authors’ Petition to remove Article 12 was released on 11th of October 2017. The signees of the petition demand the removal of article 12 from DSM Directive due to the fact that Article 12 would violate the basic principles of copyright and contractual freedom (among many other problems). The petition started as a Nordic cooperation, then Baltic countries joined in, and since that there have been many requests of concerned authors’ organizations from all over Europe. It is still open for any organization willing to join. The latest number of signees is 44 organizations from 20 countries.
- Bulgarian EU presidency in Council began in January 2018. Bulgaria presented its first compromise proposal on 23rd of March.
Situation right now
The DSM Directive Proposal has now moved forward on both tracks: in the European Parliament’s Legal Affairs Committee (JURI) and in the member states’ negotiations in the Council. Unfortunately, the proposed new amendments are not good from the authors’ point of view.
- The compromise proposal given in the European Parliament has not solved the fundamental problems of Article 12. Instead, new ones have been created and, therefore, it cannot be accepted. The rappourter is supposedly working on a new proposal. At the moment the JURI Committee is expected to vote in June.
- In the Council, the EU presidency Bulgaria presented its consolidated compromise proposal on 23rd of April. Bulgaria has amended Article 12 to the publishers’ advantage by making publishers entitled to a share of the compensations instead of being entitled to claim a share of the compensations. Bulgaria has kept the explicit mention of PLR remunerations in the Article, which would make PLR one additional type of compensations shared with the publishers.
- The Bulgarian Presidency submitted its compromise proposal to Coreper. Coreper is the Council’s main preparatory body with ambassadors as decision-makers. In Coreper meeting 27th of April Bulgaria did not get a negotiation mandate to negotiate with the European Parliament with their current proposal. A continuation of the discussions is foreseen to take place on May 16th. The Presidency will present a new proposal before that.
Sanasto is closely following and will inform on the procession of the directive in the European Parliament and the Council of European Union.