What’s next for the EU copyright proposal?

Last week, we put out a call to action leading up to the EU Parliament’s vote on the Copyright Directive. Read on to learn what they decided, how this affects software, and what’s next in the process. (It’s not over.)

What Parliament decided

On September 12, the EU Parliament voted to:

• Make content-sharing platforms directly liable for copyrighted content that users upload, which could lead to use of upload filters (Article 13)
• Exclude “open source software developing platforms” from that liability and need for upload filters (Article 2)
• Allow an exception for text and data mining only by research institutions for scientific purposes on a “non-for-profit” basis, with only an “optional” exception for others (Article 3)
• Create a new right for press publishers to require a license to use content of news articles except for “mere hyperlinks, which are accompanied by individual words” (Article 11)

What this means for software

If Parliament’s version of the Copyright Directive becomes the law:

• Sites that host user-generated content may need to filter content that users upload, but “open source software developing platforms” (like GitHub) wouldn’t need to. We supported a broader exclusion for software development platforms, archives, and repositories, as it would have protected more of the software development community. However, Parliament adopted the narrower language. Since elements of software development happen beyond that narrow exclusion, developers would need to consider whether they might be subject to liability for the content they host and resort to measures like filtering.
• Developers may need licenses to mine content—including for artificial intelligence and machine learning—unless individual EU countries decide to adopt an exception from text and data mining that would cover them. Without a mandatory broader exception, developers would be subject to a patchwork of regulations across different EU countries.
• Developers who link to news articles may need to pay to use content like article headlines or snippets. It may take a judge to interpret what the phrase “individual words” means exactly in the hyperlinks press exception we called out above. In the meantime, developers would need to be careful about what content they include to describe links.

But remember, Parliament doesn’t have the final word. We still need to keep an eye on the negotiations as they move to the next stage with the Council and Commission—and continue advocating to protect software.

What we can do next

There’s a lot to fix in the current copyright proposal. We’re looking at software because that’s where developers can speak with authority. Our focus now is on the negotiations among Parliament, Council, and the Commission (trilogues) to ensure exclusion for “open source software developing platforms” isn’t only limited to “non-for-profit” platforms. This was our goal back in April too, when both Council and Parliament proposed excluding only “non-for-profit open source software developing platforms.” With your help, we were able to show Parliament why a non-for-profit limitation would undermine their effort to protect software because most open source software development is built on platforms, like GitHub, that aren’t non-for-profit.

Now it’s time to make this clear for the Council. After hearing from developers, Parliament realized it didn’t make sense to limit the software exclusion to only non-for-profit software development platforms. We need to make sure the Council understands this, too. EU developers, contact your Council members and explain why they need to exclude all open source software development platforms from filtering obligations—not only non-for-profit ones—if they want to effectively protect software development in the EU.

Copyright law hasn’t kept up with the digital age, and we support greater copyright reform that protects how software development happens around the world today. But as we’re fixing copyright law, it’s important to make sure that we aren’t actually creating more problems. Although the Copyright Directive may be a step forward, we have to continue advocating for fair and balanced change that protects software—and the economy it powers—in the process.

Written by

Abby Vollmer

@vollmera

I'm GitHub's Director of Platform Policy and Counsel, building and guiding implementation of GitHub’s approach to content moderation. My work focuses on developing GitHub’s policy positions, providing legal support on content policy development and enforcement, and engaging with policymakers to support policy outcomes that empower developers and shape the future of software.