Winners and losers of Copyright war in the EU Parliament

One of the last plenary session of the European Parliament before the European Elections has been filled with ground-breaking developments. EU Parliamentarians fought and voted over the key (and controversial) decision on the EU copyright rules. On Tuesday, the Members of the European Parliament (MEP) adopted the directive in plenary by 348 votes in favour, 274 against and 36 abstentions. The final votes’ breakdown show that the new Copyright Directive has been an incredibly tough topic, since its legislative process began in 2016. In fact, only 69% of MEPs voted along with their European political group lines.

The centre-right (EPP, ECR and a part of ALDE) was able to reach a majority with the support of ENF (348 to 274), thus shaping the EP’s position according to their own views. Notably, the left-of-centre groups voted against the new Directive of copyright, but their efforts were not enough to reach the majority.

The controversy of the new Copyright Directive is that this legislation will have an impact on the business models of platforms such as YouTube, Google or Facebook. “This directive is an important step towards correcting a situation which has allowed a few companies to earn huge sums of money without properly remunerating the thousands of creatives and journalists whose work they depend on,” said the German rapporteur, Axel Voss (EPP).

Within this article you will find out:

– Which political groups made the difference when supporting stricter copyright protection on online platforms? *Hint: 53% of MEPs sided with the media and creative industries, which demand stricter rules to ensure a ‘fair compensation’ for reproducing their work. Conversely, 42% of MEPs sided with the internet campaigners and digital corporations, such as Google and Facebook, which would have been harmed by the stricter requirements on copyright protection. There is a difference of only 74 votes between the two camps.

– Who are the winners and losers of the new Copyright Directive?
– Which political groups have been more divided?
– What has been the level of cohesion within the different political groups?
– Which delegations have been sharply or slightly divided regarding this voting?
– What are the main achievements of the new Copyright Directive and how will affect citizens and right holders?
– What will happen next?

Voting behaviour by political party

The outcome of the vote in the plenary was very close, as we predicted on the day preceding the vote. 42% of MEPs sided with the internet campaigners and digital corporations, such as Google and Facebook, which will be harmed by the new requirements on copyright protection. Conversely, 53% of MEPs sided with the media and creative industries, which demand stricter rules to ensure a ‘fair compensation’ for reproducing their work online.

The side supporting stricter copyright rules has been led by EPP, the biggest political group in the EU Parliament and the only one in which a majority of MEPs voted in favour of the proposal by the JURI Committee in 2017. Together with the EPP stand the majority of the MEPs from S&D, ALDE and ENF, but strong disagreements were observed within these parties. 35% of S&D MEPs who voted on Tuesday did it against their political party’s position. Other political groups were somehow evenly split: while 38 ALDE members voted in favour of the stricter report, 25 voted against it. Likewise, 15 ENF MEPs voted in favour of the new Directive and 14 against it.

In this context, the levels of cohesion of S&D (43.4%) and ALDE (34.38%) are low in comparison to their average figures. This also applies to EPP (68.3%) and to ENF (20.31%). Overall, the level of cohesion of the political groups in favour of stricter copyright rules was much lower than those against the new Directive, showing a high level of disagreement within the different political parties in accord with the reform.

On the other hand, the majority of the MEPs from the political groups of ECR, EFDD, The Greens/EFA, and GUE/NGL voted against the new Copyright Directive and sided in favour of internet campaigners and digital corporations, who have advocated for the neutrality of the internet. By and large, a high degree of agreement was observed within the political parties against the new Copyright reform.

The biggest players of this counter-proposal group have been The Greens/EFA and GUE-NGL, both reach the highest level of cohesion (74.47% and 72.73%, respectively). Due to the number of MEPs inside ECR, the centre-right party has also played an important role in this voting against the new Directive. However, the position of ECR group was clearly divided, achieving only 44.03% of cohesion.

Voting behaviour by member states

A more in-depth look reveals some variations within the largest political families according to the delegation or member state of their MEPs. Concretely, the majority of the MEPs from the biggest delegations of the European Parliament voted in favour of the new directive, except for Germany. The 91% of the  French delegation voted in favor of stricter copyright rules, together with 71% of the Spanish MEPs, 58% of Italian MEPs and 51% of British MEPs. On the contrary, only 42% of the German delegation supported the proposal.

Notably, the Polish delegation in the EPP broke away from the group line and voted alongside the pro-open content camp. Equally, the German socialist delegation (and some of the Italians) broke away from the S&D group and voted alongside against the copyright reform.

The German delegation is one of the most divided in this voting, because German MEPs head the largest political groups, the EPP, the Greens group and the far-left group GUE-NGL. On Tuesday, 38 German MEPs voted in favour stricter copyright rules , whereas 49 voted against the new Directive. Moreover, Italian and British delegations were similarly divided. 39 Italians MEPs voted in favour and 27 against. Likewise, 31 British MEPs voted in favour, while 30 voted against.

The lobby war

The lobby battle over copyright has become so controversial especially because of Article 13 and Article 11. Everyone in Europe agrees that emergent technology, platformization and the borderless nature of the internet have changed the way that citizens consume and interact with copyrighted material. However, the European Parliament is divided regarding the idea of regulating the internet, the content on the internet and the platforms that enable the visibility of such content, since there are those who see platforms as publishers and those who see platforms as merely channels.

On the one hand, Article 13 makes online platforms legally liable for unlawful content and explicitly requires such platforms to use content-filtering technology. This last idea put the European Union in the difficult position of advocating against the “neutrality” of the internet and freedom of expression. However, “numerous provisions are specifically designed to ensure the internet remains a space for freedom of expression,” states the EU Parliament. In conclusion, the controversial Article 13 aims to hold tech firms responsible for material posted without copyright permission.

Because of the lobbying generated on Article 13, the legislators were forced to ensure citizens that uploading protected works for quotation, criticism, review, caricature, parody or pastiche (such as memes and Gifs) will continue to be available and shareable on online platforms, such Twitter or YouTube. Still, there are those who doubt about the capacity of such content-filtering technology to differentiate between parody or unlawful content.

On the other hand, Article 11 establishes a ‘neighbouring right’ for press publishers. An idea that was already implemented in two member states (Germany and Spain) in the past. The also called ‘link tax’ enhance rights holders’ chances, notably musicians, performers and script authors, (creatives) as well as news publishers, to negotiate better remuneration deals for the use of their works when these feature on internet platforms. However, citizens will not be affected because “hyperlinks to news articles, accompanied by individual words or very short extracts can be shared freely,” explained the EU Parliament. In conclusion, Article 11 states that search engines and news aggregators platforms must pay to use links from news websites.

The EU text also specifies that uploading works to “online encyclopaedias” in a non-commercial way, such as Wikipedia, or open source software platforms, such as GitHub, will automatically be excluded from the scope of this directive. Start-ups and SMEs platforms will be subject to lighter obligations.

Next steps

Now member states (the Council of the EU) will have to discuss on Parliament’s decision in the coming weeks. This is usually a formality since there is already a trialogue agreement. However, we can expect the opposing side to make a last minute effort to block the proposal in the Council.

If the member states accept the text adopted by the European Parliament, it will come into force after publication in the official journal and then member states will have 2 years to implement it in their national legislations. The regulations are still expected to affect the UK despite Brexit.