Tuesday, February 19, 2019

German government may oppose Article 13 of EU Copyright Directive in tomorrow's COREPER vote, according to tweet by MEP from coalition party

[Update on 02/20/2019] Merkel imposed her will and social democratic resistance was too little, too late, so the EU Council approved the "trilogue" outcome. [/Update]

The most problematic part of the proposed EU Directive on Copyright in the Single Market may be deleted tomorrow!

According to a tweet by Tiemo Woelken ("Wölken" in German), an MEP from the center-left Social Democratic Party of Germany (Merkel's coalition partner), Germany's minister of justice Katarina Barley (from the same party) is presently trying to persuade the chancellor, the minister of economic affairs (Peter Altmaier) and the chancellor's chief of staff (Helge Braun) to support this position. Here's the tweet (in German; this post continues below the tweet):


"Update! #CopyrightDirective without #UploadFilter is a possibility. It won't be @katarinabarley's fault! She's presently trying to persuade @HBraun, @peteraltmaier and #Merkel to adopt the directive without #Article13. I hope @CDU [= Merkel's party] has understood how serious the situation is."

Mr. Woelken gave a great speech at today's JURI (Legal Affairs Committee of the European Parliament) debate. I particularly liked the fact that he emphasized, toward the end, the importance of user-generated content. That's what Article 13 is about; not "censorship."

About an hour before the tweet shown above, he encouraged the resistance movement to keep on fighting and said "you're being listened to." That may already have been based on some early indications of all the protests having an effect on the German government.

Eight countries opposed the directive in the past, while Germany voted in favor, though not enthusiastically. In order for a directive to be adopted, the Council (= where the Member States cast their votes) and the Parliament (= the elected representatives of the people) must agree, and in connection with directives the Council has a "qualified majority" voting system allowing two different options for a blocking minority: In order to be adopted, a bill needs to be supported by

  • 55% of the Member States (so any 13 countries, even the 13 smallest countries, can block) and

  • those Member States must also represent more than 65% of the total EU population (so any number of countries can block provided that they account for more than 35% of the EU's population).

Only if there is no blocking minority in place, a bill is adopted, so there are two bites at the apple: either get 13 countries or get fewer countries as long as they account for more than 35% of the total EU population. In the context of the EU Copyright Directive, a blocking minority based on the second criterion would be in place if the countries that previously opposed the bill hadn't changed their position (and there's no reason why they should) and Germany joined them: in that case the opposing countries would represent more than 35% of the total EU population. In fact, the total population size of Poland, Italy, Luxemburg, Malta, Slovakia, the Netherlands, Finland, Sweden and Germany would be approximately 43%. They could threaten to vote against unless Article 13 is thrown out. That's how it often works in the Council.

Not only is Mr. Woelken a perfectly credible source but there are two factors that would actually make it a logical thing for the German government to do:

  • The coalition agreement between Merkel's party (CDU), its small regional sister party (CSU) and the SPD contains a clause according to which Germany would not support upload filters.

  • Well over one million of the 4.7 million signatures delivered to Minister Barley today were from German citizens--mostly young people, including countless first-time voters. The SPD has recently experienced some recovery in the polls after making some political demands appealing to its traditional voter base. The EU Copyright Directive is now about young voters, and if Merkel did what she indicated in a speech today and supported upload filters, her party would take all the blame, with significant potential consequences in a crucial election year (European Parliament elections plus various regional elections in Germany, particularly in the East, where Merkel is from but most unpopular).

A public affairs consulting firm, Chronos, already tweeted about a change of the German government's position before Mr Woelken did (this post continues below the tweet):

When I asked them to provide a source, they declined to do so (this post continues below the tweet):

But this suggests that they, too, have an inside track. In my experience, information often leaks from those diplomatic circles. COREPER, the committee of permanent representatives (= the Members States' ambassadors to the EU), doesn't meet in public, but there's always a number of people in Brussels who know where the other Member States stand. That's the idea of having permanent representatives in Brussels: they constantly communicate regarding these processes.

Tomorrow (Wednesday), there'll be a COREPER vote unless the latest developments result in a postponement, which would be more than just a crack in the shell for the directive.

COREPER votes aren't final: the decisive votes have to be cast by the heads of state and government at a European Council meeting, or by ministers (or the state secretaries representing them) at an EU Council of Ministers meeting. But COREPER votes are meant to prepare the formal votes, and as long as a bill doesn't have a qualified COREPER majority, there's normally no point in putting it to a vote in a formal Council meeting (absent some new backroom agreement between countries that would change everything, but even then they'd normally hold another COREPER vote first).

Should the bill fail to get a qualified majority (= a majority so solid that there's no blocking minority of any kind) in the Council, the European Parliament's JURI committee will probably have to postpone its own vote (scheduled for next Tuesday, and meant to prepare a plenary vote in late March). If the Council does adopt the bill, but without Article 13, JURI could speak out in favor of the Council's new version. It would be irrational for JURI not to do so: no other article in the bill depends on Article 13.

Theoretically, the EU could later try to amend the directive to the effect of reintroducing Article 13. However, the next European Parliament will be structurally different from the current one, with more anti-establishment MEPs than ever.

In today's JURI debate, Axel Voss MEP, the German conservative (note that politicians from Merkel's party aren't conservative by American standards) who's the Parliament's rapporteur and the leading proponent of this directive, said that Article 13 was merely consistent with the case law. If that were so (it obviously isn't, but that's what he says anyway), Mr. Voss shouldn't have a problem with just dropping it in order to have a deal and proceed.

Mr. Voss's speech today was in parts just as absurd as Article 13 itself. For an example, he argued that most online platforms wouldn't be affected because they don't provide large quantities of copyrighted content. However, even private photos uploaded to social networks as profile pictures are copyrighted, so Article 13 casts a wider net than Mr. Voss would have you believe.

It was really disappointing to see Tadeusz Zwiefka MEP, a Polish center-right politician with a communist past, support the directive in today's JURI debate. He was among the MEPs who strongly opposed software patents in 2004-2005.

All going well, Article 13's days are numbered. Not only its days. Even its hours.

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