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An academic perspective on the copyright reform

An academic perspective on the copyright reform
An academic perspective on the copyright reform
The recently proposed new Copyright Directive was released on 14 September 2016. It has been described by EU law-makers as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate. In its Communication of 6 May 2015, the EC had stressed “the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter.” The proposed Copyright Directive is thus a key measure aiming to address two of these three issues. However it is not without shortfalls.

We have therefore decided to publicly express our concerns and send an open letter to the European Commission, the European Parliament and the Council to urge them to re-assess the new provisions dealing with mandatory filtering of user-generated content in the light of the CJEU case law and the Charter of Fundamental Rights of the European Union.

In a more extended statement, we examine in details the text of both the explanatory memorandum and the Directive itself.

Our conclusions are:

1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including CJEU case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts.

2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect.

We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council.
2212-4748
3-13
Stalla-Bourdillon, Sophie
c189651b-9ed3-49f6-bf37-25a47c487164
Rosati, Eleonora
bd04e7f8-e14b-4e43-975e-77bc5abaa8a4
Turk, Karmen
c26b0a9c-9cb1-400d-bd86-f2e5531a967b
Angelopoulos, Christina
1ce88749-733a-4255-ba4f-5962385c7a18
Kuczerawy, Aleksandra
0813f5fc-9a8d-4faa-8ba4-03b5ef0f7e91
Peguera, Miquel
1d23fb6e-0b2d-4c99-bf18-ff55e38b05b0
Husovec, Martin
18a201ce-bf93-4475-a349-388b09b6c0a4
Stalla-Bourdillon, Sophie
c189651b-9ed3-49f6-bf37-25a47c487164
Rosati, Eleonora
bd04e7f8-e14b-4e43-975e-77bc5abaa8a4
Turk, Karmen
c26b0a9c-9cb1-400d-bd86-f2e5531a967b
Angelopoulos, Christina
1ce88749-733a-4255-ba4f-5962385c7a18
Kuczerawy, Aleksandra
0813f5fc-9a8d-4faa-8ba4-03b5ef0f7e91
Peguera, Miquel
1d23fb6e-0b2d-4c99-bf18-ff55e38b05b0
Husovec, Martin
18a201ce-bf93-4475-a349-388b09b6c0a4

Stalla-Bourdillon, Sophie, Rosati, Eleonora, Turk, Karmen, Angelopoulos, Christina, Kuczerawy, Aleksandra, Peguera, Miquel and Husovec, Martin (2017) An academic perspective on the copyright reform. Computer Law & Security Review, 33 (1), 3-13. (doi:10.1016/j.clsr.2016.12.003).

Record type: Article

Abstract

The recently proposed new Copyright Directive was released on 14 September 2016. It has been described by EU law-makers as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate. In its Communication of 6 May 2015, the EC had stressed “the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter.” The proposed Copyright Directive is thus a key measure aiming to address two of these three issues. However it is not without shortfalls.

We have therefore decided to publicly express our concerns and send an open letter to the European Commission, the European Parliament and the Council to urge them to re-assess the new provisions dealing with mandatory filtering of user-generated content in the light of the CJEU case law and the Charter of Fundamental Rights of the European Union.

In a more extended statement, we examine in details the text of both the explanatory memorandum and the Directive itself.

Our conclusions are:

1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including CJEU case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts.

2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect.

We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council.

Text
Stalla Bourdillon Final 07.12.16.pdf - Accepted Manuscript
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Accepted/In Press date: 3 December 2016
e-pub ahead of print date: 1 February 2017
Organisations: Faculty of Business, Law and Art

Identifiers

Local EPrints ID: 405462
URI: http://eprints.soton.ac.uk/id/eprint/405462
ISSN: 2212-4748
PURE UUID: 167ca2a8-a04e-4975-a58a-7262876b6008
ORCID for Eleonora Rosati: ORCID iD orcid.org/0000-0002-7357-5978

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Date deposited: 03 Feb 2017 16:56
Last modified: 07 Oct 2020 04:22

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Contributors

Author: Eleonora Rosati ORCID iD
Author: Karmen Turk
Author: Christina Angelopoulos
Author: Aleksandra Kuczerawy
Author: Miquel Peguera
Author: Martin Husovec

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