ENDitorial: Transparency and law-making on EU copyright – mutually exclusive?

Transparency should be a core principle for an open democracy. According to the European Union (EU) founding treaties, in order to have a democratic decision-making process, the EU institutions “shall maintain an open, transparent and regular dialogue with representative associations and civil society”. However, by following the legislative process on the copyright directive, one can draw the conclusion that the European Commission (EC) understands transparency and law-making as mutually exclusive concepts.

The current copyright system is undoubtedly broken. Instead of fixing it, the EC decided to undermine the legitimacy of the decision-making process as a whole. When issuing the new copyright directive, the Commission failed to respect its own better regulation agenda and its obligation to be transparent in relation to the legislative process of the copyright directive proposal.

Before proposing legislative acts, the Commission must consult widely and “take into account the regional and local dimension of the action envisaged”. Despite the high participation in the last copyright consultations, the EC decided to ignore the results and legislate in favour of a minority of stakeholders instead. This has been done without taking into consideration the big picture of the internet as a complex ecosystem. Thus, in the last public consultation on ancillary copyright, the majority of the individual responses were not in favour of this measure. However, the EC decided to put this measure in Article 11 of the draft legislation, ignore citizens’ opinion and transform the copyright reform into a “patchwork of concessions to lobbyists’ demands“. As if that was not enough, the EC also proposed the implementation of an upload filter (aka “censorship machine”) in Article 13 and recitals 38 and 39. That one article proposes, in addition to upload filtering, primary and secondary liability for internet hosting companies, content recognition technologies, a meaningless “redress” scheme for people whose uploads have been deleted, and mandatory cooperation between internet companies and rightsholders on the deletion of uploads.

After the period of consultations, the EC has also managed to limit transparency, a key element in EU decision making, by unreasonably limiting access to public documents. EDRi filed a request to access the correspondence between Commissioners, cabinets and services on the proposal for a copyright Directive. In the first reply, EC responded they only had one email that met the criteria. That email could not be revealed because “the disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. EDRi then filed confirmatory applications to review the handling of the request. As a response, the EC sent some partially grayed out documents, but refused to reveal the most important parts of these documents because there was no overriding public interest.

There are serious doubts about the legality and adequacy of some of the measures proposed in the Copyright Directive proposal, especially regarding Articles 11 and 13. Therefore, the possibility for citizens to find out how the provisions on the new right for publishers or the upload filter ended up in the proposed directive is a precondition for the effective exercise of their democratic rights.

According to the rules in the Regulation (EC) No 1049/2001, the right of access to documents is not an absolute fundamental right, so exceptions could be imposed. However, those exceptions must be interpreted and applied strictly and must be proportionate. In this case, the EC invoked the exception in Article 4(3) relating to situations where a decision has not yet been taken by the institution. In order for this provision to apply, the EC should prove the risk of the interest being undermined is reasonably foreseeable and not purely hypothetical. The only given explanation is that “the release of the document at this stage would prejudice the position of the Commission during the current interinstitutional negotiations that have not yet resulted in the adoption of the legislative proposal concerned.” It is difficult not to raise an eyebrow and argue that there is an overriding public interest to avoid the application of the exception in Article 4(3) mentioned by the EC.

The EU institutions need to do much more if they want to gain the trust of EU citizens. The fact that the EC is restricting access to key documents on some of the most harmful aspects of the Copyright Directive proposal undermines the foundations of the entire proposal. If the EC believes that installing a censorship machine for all uploads to the internet in Europe is a valid proposal, it should let people know why. The EC needs to prove that such a proposal is well-founded on the basic legal pillars of the EU, including the Charter of Fundamental Rights of the European Union, and that there were solid arguments for such measure. Up to now, it has failed to prove so.

Access to document requests by EDRi on the correspondence between Commissioners, cabinets and services on the proposal for a Copyright Directive
https://www.asktheeu.org/en/request/correspondence_between_commissio#incoming-12801

Access to documents request on Ancillary Copyright law (09.03.2017)
https://www.asktheeu.org/en/request/2015_and_2016_documents_on_the_a#incoming-12549

Communia’s article on the request for the EC’s legal opinion on copyright (14.02.2017)
https://www.communia-association.org/2017/02/14/european-commission-doesnt-want-say-directive-conceived/

Copyright document pool (12.06.2016)
https://edri.org/copyright-reform-document-pool/

The copyright reform: A guide for the perplexed (02.11.216)
https://edri.org/copyright-reform-guide-for-the-perplexed/

Opposition against link tax gets big ally from Spain (24.03.2017)
http://ancillarycopyright.eu/news/2017-03-24/opposition-against-link-tax-gets-big-ally-spain

(Contribution by Romina Lupseneanu, EDRi intern)