It was thought to have died, but this week week it was given a new lease of life. This is the Notice and Action directive which will regulate take-down requests to Google, FaceBook and other online content platforms, and which is now set to come back onto the EU policy agenda. This was revealed on Tuesday in the European Parliament by Internal Market Commissioner Michel Barnier, who is responsible for the dossier.
Michel Barnier stated his intention whilst speaking to the European Parliament on the adoption of the Collective Rights Management directive.
He has been working with two other Commissioners Neelie Kroes (Information Society) and Androulla Vassiliou (Culture) to move copyright policy forward. Critically, he intends to re-prise the work on the Notice and Action directive and the likely timing is after the European elections.
The Notice and Action directive proposes a formal process for requesting content take-downs, similar, but not the same as, exists in the United States. A draft of the directive was floated last year (see EU notice & action directive: its on the way ) but it was later withdrawn (Notice and action directive to be blocked as EU backs down ). My understanding was that there was a conflict between the interest groups over a provision for a counter-notice. Citizens advocates wanted the counter-notice, but the rights-holders were against it, and told the Commission they did not like it. So the Commission backed down.
Michel Barnier acknowledged that notice and action directive is “a sensitive issue, linked to fundamental rights on which there are some very divided opinions” (Notice and action: the EU Commission’s Damocles moment). Nevertheless, he stated that “it goes without saying that we must make certain that unlawful content and not lawful content, is taken down within a framework of clear, fair and transparent procedures, with full respect for fundamental rights”. Of course, that can be interpreted whichever way you wish, depending on whether you are industry or citizen, but the important point is that it is there at all. This is a significant change from previous Commission policy.
Interestingly, Michel Barnier also said that the Notice and Action directive is 'not strictly linked to copyright', and is important for the confidence in the digital economy. One may infer that he is talking about the shopping list of interest groups who are pressuring for content to be taken down on a variety of grounds.
Mr Barnier referred to conversations he has been having with several MEPs about the Notice and Action directive: "some of you told me you wanted a legislative initiative on this point to give a guarantee of harmonisation at European level; and others have told me that they do no wish for such an initiative" he said (noting that 'you' refers to the MEPs).
Mr Barnier continued: 'For an initiative on this topic, whether or not it is legislative, I think that the Parliament must be completely engaged. I don't think it is reasonable to do it at this stage of the legislature'.
In other words, he was not ready to bring the Notice and Action directive forward onto the formal policy agenda before the elections, but indicated that he could do afterwards: 'Nous aurons l'occasion d'en reparler et d'y retravailler' - which if I understand correctly means 'we will have the opportunity to discuss it again, and to work on it again'. Bearing in mind he is addressing the Parliament, the 'we' means the Commission and the Parliament, so it is a signal that he intends to take up the directive again in some form. If the Parliament is to work on it with the Commission, that implies legislation. His comments about the need for notice and action procedures are also an indicator.
Importantly, it means that the Notice and Action directive is still alive and has not been shelved as we thought. We await Mr Barnier's next move.
*I apologise because the English live translation said he was going to put it to the College of Commissioners, when the French is clear that is not quite ready to do that yet, but suggests it is his intention. This posting has been updated based on the official transcript of the European Parliament session. There appears to have been an error in the live translation to English. It does not change the Commission's intention, but does affect the timing.
This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2014, Notice of Action! Barnier to resurrect take-down directive, in Iptegrity.com 6 February 2014. Commercial users - please contact me.
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