After over two years of deliberation, protests, and fierce debate, the European Parliament (EP) adopted the new Directive on Copyright in the Digital Single Market on March 26, 2019. The high level of controversy surrounding the legislation was once again demonstrated by the vote count: 348 EP Members voted in favour, while 310 either voted against or abstained.
The Council of the EU, as of April 15, approved the new Directive confirming the fate of EU copyright law. Once it is published in the official journal of the EU for 20 days, member states will then have two years to implement the Directive into national laws.
The primary aim in passing the EU’s Copyright Directive was to regulate and balance the clash between creators, who typically seek robust copyright protection for their content, and tech platforms, which claim that to promote freedom of speech and innovation, copyright laws should be liberalized to allow online content to be easily shared. This clash surrounds two particularly controversial provisions, Article 15 (Article 11 in previous drafts) and Article 17 (previously Article 13), which several tech giants had previously described, in an open letter to the EP, as being “inadequate to reap these benefits and also fail to strike a fair balance between creators and all other parts of society.” Although Article 15 creates a new right for press publishers lasting two years, Article 17 requires online service providers to take a more pro-active role in preventing infringing online content from being freely shared. This approach would significantly change the current state of affairs, which places the onus on rightsholders to report the infringement. Both articles and their implications on the future of EU Copyright law are discussed in greater depth below.
Link Tax
Article 15 provides that where a publisher’s original content has been used by an information-society service provider (such as an online news aggregator or search engine), the service provider must give an appropriate share of its revenue to the publisher. But there are exceptions. Where an individual has used a publisher’s content in a non-commercial manner, or where hyperlinks or “very short extracts” were used, no payment is required.
“Best Efforts” to Reduce the Value Gap
Article 17 imposes obligations on online content-sharing service providers (OCSSPs)—e.g., social media, video and music-sharing sites, and gaming-streaming platforms—to obtain authorisation from the rightsholders, either in the form of content licences or otherwise. To avoid liability, OCSSPs who have acted without authorisation are required to demonstrate they have acted expeditiously in response to takedown notices and made “best efforts” either to obtain authorisation or to make the content unavailable.
Safeguarding provisions have also been introduced. For example, Article 17 does not apply to non-profit education sites or private cloud platforms, or where content that has been used for quotation, criticism, review, caricature, parody, or pastiche (allowing memes and gifs to be shared freely). Article 17 also directs that the member states, when determining whether the OCSSP is liable, shall consider the type, audience, and size of the service provider, and the type of works uploaded by the users of the service. Importantly, to ensure that new market players are not disadvantaged, OCSSPs that have been active for less than three years and have an annual revenue of 10 million Euros or less will be subject to less stringent obligations.
Practical Issues
Concerns have been raised as to how Article 15 will work in practice, including how terms like “very short extracts” will be interpreted by the courts (since little guidance has been provided so far). Indeed, in the last five years, similar copyright laws were introduced in Germany and Spain, and their effectiveness has been called into question. This leaves sceptics pessimistic about whether the new Copyright Directive will produce the benefits its advocates were lobbying for.
While Article 17 has honourable intentions and goes some way towards rebalancing the power between creators and tech platforms, there is much debate on whether it will function effectively. It will be interesting to see how member states implement the new Directive into national laws given their relatively flexible licence on that score. Moreover, it’s likely that the responsibility will fall on the Court of Justice of the EU to define its vague terms such as “best efforts”—so that will also be interesting to watch. Finally, although we expect the European Commission to issue adequate guidance in due course, it’s interesting to note that OCSSPs have already started considering how they will comply with the Directive, whether by introducing filters or by creating functionality that would put the onus on uploaders to state whether protection is required.
Despite practical concerns, the new Directive significantly modernises the current law and marks a fundamental step towards a digital single market. We eagerly await to see how the member states choose to implement the Directive into national laws and will report on the key developments accordingly.
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