Why the Digital Directive Won't Leave an Impression

On 14 September 2016, the European Commission presented the second tranche of a series of proposals to improve the framework of digital copyright within the European Union. The proposals are part of a larger strategy that goes under the name of the digital single market. Among the various initiatives, the one that has attracted most attention is the Commission's Proposal for Copyright in the Digital Single Market (DSM Directive), because of the many controversial aspects it presents. There is, in fact, no agreement on the impact that these new provisions, once adopted, will have on cultural industries, especially regarding certain items such as the proposed reform of the mandatory exception regime (Articles 3 to 6) and the new rights accorded to newspaper publishers (Article 11). At the same time, the directive seems to lack coordination with the existing body of EU law (in particular the e-commerce directive) on a key point for the development of digital markets: the responsibility of Internet intermediaries.

But what is more surprising in the proposed DSM Directive is that it seems to forget the need to make those changes that, by aligning copyright to current technological developments, would be a true modernization of intellectual property, benefiting not only consumers and users, but also businesses, institutions of education and cultural organizations. On the contrary, the DSM directive focuses on a completely different goal: to minimize the impact that changes generated by digital technologies and the Internet produce on exisitng business models. So instead of widening the possibility of new activities based on data mining, the proposal consolidates known interests, such as newspaper publishers. They will get a connected or ancillary right, the right to monetize the digital use of their content, although this measure has not generated any benefits to journalistic publications in those countries, such as Spain, where such a legal regime is already in effect.

According to the same logic, online platforms could be forced to collaborate with rights holders, even more than they already do, in order to censor content that is shared by online users. In short, the whole package has been widely accused of lacking forward-looking, innovation-friendly measures that embrace digitization as an opportunity for European users, creators, businesses, and public institutions alike.

The approach adopted for the data and text mining is a clear example of the desire to protect traditional business models instead of introducing provisions that make the data-driven economy more effective. In order to protect the licensing revenues of large scientific publishers, the Commission proposes an exception (which will be mandatory for all Member States) which authorizes data-mining activities only in the case of research entities having scientific purposes without taking into account that big data is affecting all sectors, not only the academic one. This is to the detriment of companies that intend to innovate, especially start-ups, and anyone else who wants to undertake such an endeavor. If it is true that data and text mining allow you to extract knowledge from the analysis of vast amounts of data, it is not very useful to limit the exception to scientific research, since any individual or organization with legal access to content should be able to contribute to the creation of a true data market in Europe.