Yesterday we informed you about most of the downsides – there are not really upsides – of the leaked draft for a new EU copyright directive. There is particularly one more thing to be added: The #creatorgate clause.

The anti-Reprobel article a.k.a. #creatorgate clause

The observers of copyright development will have noticed the Reprobel decision of the ECJ in November 2015. The decision was a huge success for the interests of the authors where they collide with those of the publishers. In a nutshell the court held that the private copying levies that are collected by collecting societies have to be allocated in full to the creators. Hence, publishers cannot claim a share. The decision was highly controversial, mostly of course from the publisher’s side. So was the verdict of the German Federal Court of Justice (the “Vogel-Case” decision), which adopted the ECJ’s ruling shortly after.

The publisher’s lobbying for a “correction” of this “mistake” in the present law started immediately. Highly successful as the leaked draft shows. Art. 12 turns the court’s Reprobel decision upside down. It says that the member states can grant publishers rights in a share of those levies.

Better regulation? – Now come on!

Don’t get me wrong. I personally think that it is a debatable question whether publishers should be entitled in a share of these revenues. It might or might not be fair to divide the levies between publishers and authors like many collecting societies did for a long time. However, this is certainly not the average author’s position and it is very difficult to justify that such a claim – like it is proposed – should even be added to a potential publisher’s neighbouring right. But this is not my main point here.

The actual point is that this aspect was never discussed. It is another evidence that the draft directive proposal (and also the so called “Impact Assessment”, IA) appears to be an answer to the publisher’s wish list rather than even an attempt to find balanced solutions for tomorrow’s copyright. The question of levy sharing was never evaluated, the idea never communicated. Nobody was obviously consulted about it but, most likely, the publishers alone (who do not need an invitation to utter their concerns anyway). Regardless, it turned up out of nowhere in the IA (see p. 157), which recommended to introduce this #creatorgate clause. The IA does not bother to deal with the obvious objections from the creator’s perspective.

Acting like that is, I would say another, evident violation of the Commission’s self-prescribed “better regulation” principles. After all better regulation is defined as (emphasis added):

“a way of working to ensure that political decisions are prepared in an open, transparent manner, informed by the best available evidence and backed by the comprehensive involvement of stakeholders.”

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