UK Spurns EU Copyright Directive: Square One For Value Gap In UK

According to recent reports, the UK will be eschewing implementation of the European Copyright Directive, putting it back to square one of the value gap as the country Brexits through the gift shop.

Guest post by Chris Castle of Music Tech Solutions

Sometimes it sucks to be right.

According to PRS, the UK government has confirmed that the UK will not be implementing the European Copyright Directive (which passed the EU Parliament and is currently in the implementation stage).  Remember that the whole point of a big chunk of the Copyright Directive was to rein in Google’s abuse of Europe’s version of the DMCA safe harbor.  Called the “value gap”, the idea was that Google profits from the safe harbor whack a mole that we’re all familiar with due to a loophole in both US and EU copyright law.

Having passed the EU Parliament, the 28 (soon to be 27) countries of the EU have a two year window to transpose the Directive into national law which is currently underway.  However–because Brexit will become effective after the Directive was passed but before the UK has promulgated transposing legislation, the position of the newly elected Johnson government is that the UK will not be adopting transposing legislation and instead go its own way.

The PRS/M Magazine site tells us:

[I]n a written parliamentary exchange MP Chris Skidmore, confirmed that any changes to the UK’s copyright framework would fall under the domestic policy process.

Written questions allow Members of Parliament to ask government ministers for information on the work, policy and activities of government departments.

He was responding to a question from Jo Stevens, MP for Cardiff Central, who enquired: ‘What plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law.’

Chris Skidmore, Minister of State at the Department for Education and the Department for Business, Energy and Industrial Strategy, responded: ‘The deadline for implementing the EU Copyright Directive is 7 June 2021. The United Kingdom will leave the European Union on 31 January 2020 and the Implementation Period will end on 31 December 2020. The Government has committed not to extend the Implementation Period. Therefore, the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.’

The statement follows Culture Minister Nigel Adams’ pledge for a new music strategy to ensure the UK music industry remains the envy of the world, but he also hinted that the Directive was under threat.

Adams said: ‘We support the overall aims of the Copyright Directive. But our imminent departure from the EU means we are not required to implement the Copyright Directive in full.

I anticipated this might happen in a post on Artist Rights Watch critical of the incorporation of the DMCA and Section 230 safe harbors into the US Mexico Canada Agreement (USMCA).  What it means is that the UK is back to square one on the value gap.  It also means that USMCA is a bad precedent for artists in US bilateral trade agreements which it seems will now have to be negotiated with the UK.

Getting the DMCA incorporated into USMCA is, let’s face it, a major lobbying victory for Google that takes the sting out of big losses in the European Parliament on the European Copyright Directive.

But see what they did there?  Google are having trouble stopping the headlong defense against its safe harbor abuse through the front door, so they make an end run by lobbying for language in USMCA that gives them their treasured “groovier than thou” safe harbor privilege.  That privilege saves Google and other Big Tech publishers from complying with the law same as anyone else, from copyright infringement to profiting from illegal goods to advertiser fraud.  And now of course they want USMCA to become a model for all other trade agreements–including, no doubt the coming bilateral agreement with the UK after Brexit.

That is what we need to stop cold in its tracks.  And by “we” I mean all creators–not just music, but artists in all copyright categories.

This is one to keep an eye on and there will be more on this in coming days.