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Form and substance in the Value Gap Proposal
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In September 2016, the European Commission published a copyright reform package, including a new Directive on copyright in the Digital Single Market. One of the Directive’s most controversial aspects is the so-called “value gap proposal” provided in Article 13 and accompanying recitals. This proposal suffers from a number of fundamental problems, of both a formal and substantive nature. From the formal point of view, the proposal (i) includes normative provisions in the recitals, (ii) lacks basic clarity, and (iii) uses trivially vague language. On the substantive side, if passed into law the proposal will (i) thwart digital innovation and (ii) disproportionately restrict the fundamental rights of Internet users and platform operators. Given the seriousness of these flaws, the EU institutions should consider deleting or, at least, significantly rewriting the proposal.