• Trilogue on Platform Work Directive ends without agreement

On 30 January, the seventh trilogue on the Platform Work Directive took place, during which the Belgian Presidency presented its revised mandate to the European Parliament (EP). While an agreement was struck during trilogue in December 2023, Member States did not support the deal brokered by the Spanish Presidency. In the meantime, the Belgian Presidency has worked towards finding a revised mandate that found sufficient support by Member States. Ahead of the trilogue on 30 January, the Council’s mandate was closer to the General Approach, which included a threshold of 3 out of 7 criteria to be fulfilled to trigger a legal presumption of employment. This is in contrast to the provisional agreement from December, which used a 2 out of 5 threshold. However, the EP could not agree with the Council’s proposals. During upcoming technical meetings, a possible solution should be guided by the following main principles:

• The legal presumption should help ensure the correct employment status of people performing platform work, fight bogus self-employment and improve working conditions.
• Member States should put in place a rebuttable legal presumption in national law to facilitate a correct classification of bogus self-employment.
• The final decision on reclassification should take into account national law, collective agreements or practices in force in the Member States, with consideration of the Court of Justice of the European Union (CJEU) case law.
• The burden of proof should be on the digital labour platform whenever it rebuts the legal presumption.

The institutions aim at working on a joint exploratory text based on these principles and submitting a revised mandate to COREPER on 7 February, ahead of a trilogue on 8 February. 

• The LIBE Committee adopts its draft report on the extension of the Interim Regulation (by less than one year)

On 31 January, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) adopted (by 43 votes in favor, 19 against, and 4 abstentions) its draft report on the proposal for a Regulation amending Regulation (EU) 2021/1232 of the European Parliament and of the Council on a temporary derogation from certain provisions of Directive 2002/58/EC for the purpose of combating online child sexual abuse (‘proposal to extend the Interim Regulation’), drafted by Birgit Sippel (S&D, DE).

Prior to the vote, the rapporteur Ms. Sippel took the floor to comment on the negotiations. Ms. Sippel lamented that given the time constraints, the Committee did not have enough time to discuss the proposal with the European Commission (EC), nor make a proper presentation of the draft report, something that is customary at the committee level. Sippel also regretted that after finding a good balance on the permanent legislation they are voting to extend another piece of legislation that should not be extended in the first place.

As for the content of the Committee´s amendments, Sippel explained that they are based on the negotiating team’s conclusions after analysing the EC´s report on the application of the Interim Regulation. In line with this, voluntary detection should no longer cover grooming as there is no evidence of its effectiveness, said the rapporteur. However, and despite the rapporteur´s recommendation, the Committee decided to maintain the scope of the Regulation as it is, disregarding some of the amendments proposed by the negotiating team.

The draft report also intends to put pressure on the Council for the permanent regime to be adopted as soon as possible. Therefore, the date of application should only be extended until May 2025; another sensitive issue that obtained the Members´ support. Negotiations with the Council will mainly focus on the expiry date, as the Council has proposed a three-year extension, until August 2027.

• AI Act, the end of the saga

Later today COREPER I is likely to endorse the final compromise text of the Artificial  Intelligence Act (AI Act), as agreed at the last trilogue meeting on 8 December 2023. This agreement will pave the way for the adoption by the European Parliament before going back to the Council for the final act. The  big question will be whether the European Commission will make a statement on the implementation of the AI Act.

• Do copyright exceptions of Text and Data Mining eventually apply to the AI tools training?

Since summer 2023, when the EP adopted its position on the AI Act, adding specific references to copyright protection for inputs, a debate emerged regarding the inclusion of AI model training under the Text and Data Mining (TDM) exceptions outlined in the Copyright Directive in the Digital Single Market Directive of 2019 (CDSMD). AI tool providers have already utilised these exceptions to justify their non-compensation stance towards content right holders whose material is used for the AI algorithms’ training. Conversely, rightholders strongly oppose the utilisation of their creations by major tech platforms without receiving the fair remuneration they believe they are entitled to.

On 30 January, MEP Axel Voss (EPP, DE), the Rapporteur of the CDSMD and Rapporteur for opinion on the AI Act, repeated in a webinar organised by the Society of Audiovisual Authors, that during the negotiations of the CDSMD, the co-legislators never intended for the TDM exceptions to be applied to AI model training. In the 10th AI Act Info Session held on 31 January, Kai Zenner, Voss’s assistant, explained that the co-legislators and the EC intended to maintain the status quo and make no changes to the copyright regime through the AI Act. However, the text of the AI Act, as formulated after negotiations, sheds additional light on the subject. The Act includes certain recitals and a key provision, Article 52c(1c), linking the upcoming regulation with the TDM exceptions of the CDSMD, implying that the debate is now over as it should be accepted that TDM exceptions do apply to AI algorithms training.

Nevertheless, as communicated by high-level EC officials such as Roberto Viola, Director General of DG CONNECT, EC, and Renate Nikolay, Deputy-Director General of DG CONNECT, EC the next EC will need to assess whether there is a necessity to update the current copyright regime due to advancements in AI development.