Leading European copyright scholars fundamentally criticise the ancillary copyright  23/02/2017 by Till Kreutzer

As of today, a broad coalition of European copyright scholars wrote an open letter to the European Parliament and the Council of the EU. It openly opposes Art. 11 (ancillary copyright) and 13 (mandatory content filtering). The letter’s first signatories consist of a number of the leading academic experts on copyright. They represent some of the most respected research centres in Europe that deal with copyright research from legal, economical and other perspectives.

The message of the open letter is loud and clear (emphasis added):

“While the Proposed Directive on Copyright in the Digital Single Market (COM(2016) 593 final) contains a number of reasonable, common sense measures (for example relating to cross border access, out-of-commerce works, and access for the benefit of visually impaired people), there are two provisions that are fundamentally flawed. They do not serve the public interest.

Article 11 seeks to create an additional exclusive right for press publishers, even though press publishers already acquire exclusive rights from authors via contract. The additional right will deter communication of news, obstruct online licensing, and will negatively affect authors.

Article 13 indirectly tries to amend the E-Commerce Directive (2000/31/EC) that arranges the liability of online intermediaries for user generated content into a shared responsibility of rights holders and service providers. The proposals will hinder digital innovation and users’ participation.

With respect to both provisions, independent empirical evidence has been ignored, consultations have been summarised in a misleading manner, and legitimate criticism has been labelled as anti-copyright.We urge you to look inside the copyright package and seek out independent expertise.”

 

Fundamental assessment: The ancillary copyright is a road to nowhere!

To explain this general assessment the authors fundamentally dismantle the reasoning of the European Commission, while at the same time share most of our arguments. For example, the signatories reject the idea that a new property right would be a solution for the (acknowledged) difficulties of the press publisher’s business model in the digital world. They emphasize that the ancillary copyright (ac) would add another complex legal layer that would hinder European innovation. They share our approach that potential issues with enforcement should be addressed in a possible review of the enforcement directive. Their bottom-line reads:

“Article 11 is fundamentally misconceived, and should be removed from the Proposed Directive.”

Well, there is nothing more to add.

The bigger picture

Remember that this initiative is fully in line with a number of other academic initiatives that all share the same assessment: The ancillary copyright is a fundamentally flawed idea that should be abolished! About time for the European legislators to listen, don't you think?

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