Tuesday, March 26, 2019

Even after today's EU Parliament vote, we can still kill Article 13 through pressure on German government to prevent formal adoption by EU Council

Under normal circumstances, today's outcome of the European Parliament's plenary vote would mean we lost the fight against Article 13 ("upload filters") definitively because a 348-274 majority adopted the bill without amendments after an incredibly narrow 317-312 majority disallowed votes on individual amendments. The latter result indicates a majority against Article 13 was in striking distance, given that no amendment had nearly as much as momentum as the one that would have deleted Article 13 (now named Article 17). Some folks may have given up prematurely, but that's another story.

If we organize another an even bigger round of street protests in Germany, work with opposition parties, and put maximum pressure on Merkel's junior partner (the Social Democratic Party of Germany, SPD), we may be able to prevent Germany from allowing the directive to pass into law. But we only have two weeks to make it happen. Let me explain step by step.

Again, under normal circumstances the next step would be for the EU Council to adopt the bill in the very near term. According to Julia Reda MEP's website (by the way, she gave the greatest speech any MEP ever gave in an IP context to the best of my knowledge):

"The final remaining step is then for the Council to adopt the law as well, which is likely to take place on April 9. However, Germany, whose Minister of Justice has come out in opposition of upload filters, could still retract its support, which would make a majority unlikely and thus also lead to further negotiations after the EU elections in May.

Yes, there still is a hypothetical chance, but we have only two weeks left and it would be a first in EU history. I'm speaking from somewhat successful experience here because the first time in EU history that the EU Council was unable to quickly rubberstamp a text on which a political agreement had been reached at the level of the diplomats (COREPER = Committee of Permanent Representatives) was in late 2004 and early 2005: the proposed directive on the patentability of computer-implemented inventions aka "software patents directive." Eventually, after significant delays, the Council did adopt that one, and we got it voted down in the European Parliament with a movement that was smaller than the anti-Article-13 movement but counted more small and medium-sized enterprises among its members (some SMEs got involved against Article 13, but rather late) and had greater pan-European coverage, while Article 13 never became truly controversial in Southern Europe.

So what can we do and (how) could it work?

Let me explain the formal part: how the EU Council adopts a bill. The first step is a political agreement. That's the case when diplomats representing a qualified majority of EU Member States agree on a particular proposal in a COREPER meeting. It's not yet the formal adoption because that one requires either a European Council (a meeting of the heads of state or government) or EU Council (colloquially called "Council of Ministers") meeting. For legislation like the EU Copyright Directive, the formal decision is typically made by a Council of Ministers. The EU Council meets in different "configurations" such as "Finance" or "Fisheries," but legally it's indivisible, which means that even a Fisheries Council can adopt a copyright directive because any Council meeting is a Council meeting.

It's legally absolutely possible for a Member State to change mind between a political agreement and the formal adoption. But it's an unwritten law in the EU that political agreements are followed up, as soon as the translations are available (or in the case of the copyright directive, after an EU Parliament vote), by approval as a so-called "A item." Don't get confused by all of this EU terminology--I'm trying my best to explain.

An "A item" is a decision that is taken by silent consent. If something is listed in the "A" section of the agenda of a Council meeting, it's approved on the basis that no Member State raises a hand to object. That gives the representatives of the Member States (heads of state or government, ministers, or the state secretaries filling in for the ministers) the chance to have the item put to a vote (requiring a new Council agenda).

That's what they do all the time. Ultimately, it even happened in the case of our software patent directive, but the additional breathing space the delays in the Council afforded us enabled us to draw further attention to the issues and to get the European Parliament's Legal Affairs Committee to hold a "restart" vote based on a rarely-invoked procedural rule according to which the EP can ask the European Commission to restart a legislative process if EU elections took place in the interim. There's no automatic discontinuity (unlike in U.S. Congress), but this is like a resolution requesting discontinuity. The Commission declined the Parliament's request, but the blowback was that the Parliament later rejected the entire directive (not only for this reason, but this gave some people a great excuse).

So what are the odds in the case of the EU Copyright Directive?

There are some unique circumstances and parameters here:

  1. The most massive street protests ever against an EU legislative proposal took place last Saturday with about 200,000 people in Germany alone, mostly but not only young people. The German government parties know they're at risk of losing an entire generation of voters, even more so after Merkel's party alienated them.

  2. It appears that our efforts to kill Article 13 really failed by only a couple of votes. In the livestream I saw a sigh of relief on Axel Voss MEP's part.

  3. Just on the eve of the vote Frankfurter Allgemeine Zeitung reported something I had actually speculated about in a February 20 email responding to questions from a Politico.eu reporter: there was friction between France and Germany because of the Nord Stream 2 gas pipeline. In that situation, a typical EU-style horse trade took place, and France, which (I'm sorry to say) is in terrible shape in various respects, insisted on getting Germany's support for Article 13. Germany wanted Article 11 ("link tax"), and didn't want further irritations surrounding the gas pipeline, so they struck a deal.

  4. The intent to prevent upload filters (an inevitable consequence of Article 13) from being legally required is one of the items in the coalition agreement between Merkel's CDU/CSU and the SPD. The Franco-German deal violated the coalition agreement.

  5. The German minister of justice, Katharina Barley, who will become an MEP soon, declared herself in opposition to Article 13, but her party decided in February not to leave the coalition. However, large parts of that party want out of Merkel's coalition. Their youth organization, the Jusos, has been making that demand ever since. And SPD politicians have recently made various prohibitive demands in preparation of a mid-term review scheduled to take place in the fall and which could, as per the coalition agreement, result in a breakup.

    So far, it would have been unthinkable that a copyright reform bill could destabilize Merkel's coalition. And some more traditionally-minded politicians in the SPD's leadership probably still don't understand the issue in the slightest, while some others do. But nothing would be a better exit strategy for the SPD from Merkel's coalition than preventing the adoption of a law that is so incredibly unpopular especially (but not only) among young people.

  6. Merkel is a lame duck in various ways (though unfortunately not in all). She had to step down as chairwoman of the CDU, not least because of her unpopular migration policies. Her successor, Annegret Kramp-Karrenbauer, could theoretically form a new government coalition anytime with the libertarian Free Democratic Party (FDP) and the Greens. The Greens would normally prefer early elections because they're very strong in the polls right now, but ultimately there could be a negotiated solution that would give the Greens greater influence than their number of parliamentary suggests.

  7. EU elections will take place on May 23-26 (in Germany, it's May 26 only).

What is the potential road to victory then?

First, we must be realistic that it would shock many EU diplomats if they couldn't adopt an "A item" after a political agreement. But in the software patents case we already proved that many months of delay are possible. In this case, we have EU elections ahead of us. If all we achieved was to delay adoption beyond the elections, the newly-elected Parliament could again request a restart. Also, the new EU Commission could withdraw the old Commission's proposal and start all over.

So they could give us another chance to defeat Article 13 without breaking the unwritten rule that political agremeents result in the adoption of an "A item." It would be quite similar to the software patents situation, just that this time around they would actually have to restart the process after the elections.

Second, we'd have to prove that we can again take to the streets in large numbers--Saturday, April 6, would be the only realistic chance given that they'd otherwise adopt the "A item" on April 9. I believe that's possible. We've drawn additional attention to the issue lately, also with Wikipedia's help. We'd get more and more media coverage. There's a number of reasons for which this might work, provided that there isn't "demonstration fatigue." I'm ready!

Third, we'd need a more comprehensive and sophisticated strategy than the one that failed to achieve the desired result so far. We'd have to team up with people inside the CDU/CSU who want to get rid of Merkel, with SPD politicians who want to leave Merkel's coalition, with the opposition parties who could replace the SPD even without new elections (FDP and Greens), and also with parties to the left and the right of those parties who would, for whatever reasons, be on our side. Also, we'd have to make a far greater effort with respect to local and regional chapters of those parties, and their youth organizations at the national, regional, and local level.

While this would be sort of a long shot, the software patents experience makes me think it could work. While it's highly unlikely the Council would, for the first time in EU history, decline to adopt an "A item" after a political agreement, it's legally possible; but they wouldn't even have to break their unwritten golden rule if they simply delay things to the extent that a new Commission can, in conjunction with a newly-elected Parliament, restart the process (optional discontinuity).

No one is ever beaten unless he gives up the fight. Today's narrow outcome (of the vote on whether or not to allow amendments) proves that truism right again.

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