The EU Parliament has now voted in favour of an amended version
of the Copyright Directive. The original draft directive had been
rejected by the Parliament in July 2018, primarily due to criticism
of two key provisions, known as the "link tax" (Article
11) and the "upload filter" (Article 13). Following
substantial revision of these provisions, the Parliament has now
accepted the draft directive, although the directive will be
subject to a final vote in January 2019.
Article 13 of the original draft directive placed an obligation on
online platforms such as YouTube and Facebook to monitor content
uploaded to those platforms, and to block content that infringed
copyright. In practice, the volume of content uploaded every day
would require the use of some form of artificial intelligence.
Following widespread criticism of this proposal, Article 13 has
been amended and now places on obligation on online platforms to
work with copyright owners to prevent users from uploading
infringing content. However, in practice, this provision is still
likely to require the use of artificial intelligence to scan
uploaded content.
On the other hand, some of the other revisions to the draft
directive do lessen the burden on online platforms.
The directive now restricts the type of online platform to which
the upload filter applies. In particular, the upload filter only
applies to an online platform where that platform optimises and
promotes for profit-making purposes the storage and access
to copyright protected content uploaded by its users. In turn, the
upload filter does not apply to platforms that act in a
non-commercial capacity such as online encyclopaedias, nor to
on-line marketplaces whose main activity is the online retail of
goods. The directive also provides that the upload filter will not
apply to microenterprises or small-sized enterprises, on the basis
that such enterprises are unlikely to be in a financial position to
invest in expensive AI software to monitor uploaded content.
This amendment to the directive does seek to address the concerns
raised by many of the critics of the original draft, although it is
likely that the filter will still be found to apply to many
medium-sized commercial enterprises who may not be able to meet the
costs associated with fulfilling the burden imposed by Article
13.
The revised directive also makes express reference to allow for
non-infringing content to remain available, and for effective and
expeditious complaints and redress procedures to be put in place,
such that users seeking to upload content have a means of objecting
to the unjustified removal of any such content. Hence, if a user
seeks to upload content that is rejected by an online platform on
the grounds of copyright infringement, the user should be able to
contest that rejection by arguing that the content would not
infringe copyright, for instance by virtue of the parody defence.
Again, this amendment does address the concerns raised in respect
of the original draft, although it remains to be seen how effective
the complaints and redress procedures put in place by any
particular online platform will be.
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