Co-authored by Helen Dobson and Calum Parfitt
Last month the European Parliament voted decisively in favour of the draft Copyright Directive (“Directive”), aspects of which seem set to disrupt the status quo of online publishing and the digital sector. While the Directive faces its final vote in the spring of 2019, it seems likely – given the significant majority vote supporting the current draft – that the final text will substantively be very similar to the draft.
The purpose of the Directive is to harmonise and update copyright law across the digital single market and bring the copyright law of member states into line with the reality of the digital age. Critics of the current regime have long argued that gaps in the current system allow tech giants like Facebook and Google to profit handsomely from providing access to third party copyright protected material, at the expense of the creators whose capacity to monetise their work is circumvented. It is this imbalance – between those creating content and those more commonly distributing it – that the legislation seeks to redress.
Articles 11 and 13 of the Directive, nicknamed the “link tax” and “upload filter” have attracted the most attention and some controversy, and these provisions go to the heart of the publishing industry’s relationship with the titans of the Silicon Valley as well as content sharing platforms across the digital single market.
Article 11: The “link tax”
Article 11 will entitle content creators and publishers to charge a licence fee to information society service providers whenever those platforms share their content. This paradigm shift will mean that news aggregators, like Google and MSN, may be required to pay mainstream publications for making digital use of their content.
Critics of the draft legislation remain concerned however that this ostensibly equitable position could have a much broader application than intended. The current draft legislation does not, for example, clearly delineate what constitutes an information society service provider. Although private, non-commercial sharing will not be caught under the legislation, it is unclear where blogs, RSS feeds, and social media influencers and accounts with large audiences will fit into this new landscape.
Clarification and or guidance on what constitutes digital use is also required before the final vote on the legislation in spring 2019. While the legislation makes clear that mere links to the original content will not be subject to the legislation (and as such, the ‘link tax’ nickname title is somewhat misdirected), it nonetheless remains unclear at what point content that is shared will become subject to licence fees.
Article 13: The “upload filter”
Article 13 will put the onus on online content sharing service providers to prevent the users of those platforms from sharing unlicensed copyrighted material; social-media platforms like Facebook, Twitter and YouTube will be made liable for copyright infringement committed by their users.
This so-called ‘upload filter’ will come as good news for rights holders, who will have a clear litigation path for infringement of their works against some of the wealthiest companies in the world. What is not clear, however, is how such platforms could comply with the requirements without striking at the core of their business models, and the repercussions of this may be significant to users’ experience of those platforms.
Potentially this could force the likes of Facebook and YouTube to filter user-shared content to ensure it does not contain any copyrighted material. Putting aside objections that this might lead to the demise of user-generated content and related concerns about free speech, free press and net neutrality, it is not clear whether the technology actually exists to determine, with any accuracy, whether or not a user is uploading copyrighted material. Any system based on current technology seems likely to be, at best, unreliable and result in the unfair removal of user content which, in turn, may damage the free flow of information which the legislation otherwise seeks to protect.
The Brexit question
Following the Directive’s final approval (currently expected to be Spring 2019), member states will have a two year grace period to implement it at a national level. Despite the UK’s departure from the EU before the end of the implementation period, UK-based digital media businesses are unlikely to be exempt from the Directive’s requirements. Those operating in the EU market will need to comply with its provisions in order to continue to do so. At a macro level, it has already been acknowledged that the UK will continue to have a vested interest in keeping domestic intellectual property law in lockstep with the EU in order to ensure the free flow of information across Europe and mutual protection of rights holders.
In the meantime, it remains to be seen how these issues will be clarified in the final draft of Articles 11 and 13 of the Directive.
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