Further to the approval of the EU copyright directive (the “Directive”) in September 2018 (article here), the final version of the new EU copyright law has now been agreed and the European Parliament have voted in the somewhat controversial Directive.
The Directive aims to enhance the rights of creatives and news publishers, empowering them to negotiate remuneration deals with internet giants for the use of their works featured on internet platforms. It does so by making internet platforms directly liable for content uploaded to their site.
The legislation is designed to update copyright law in Europe for the internet age and it has taken several revisions to reach this version, which was backed by 348 MEPs with 274 against. It’s now up to member states to approve the decision. If they do, they will have two years to implement it.
The changes have been controversial to say the least with critics opposing Articles 11 and 13 (renamed Article 17 in the latest legislation) specifically.
What is Article 13?
Article 13 states content-sharing services must license copyright-protected material from the rights holders.
If that is not possible and material is posted on the service, the company may be held liable unless it can demonstrate:
- it made “best efforts” to get permission from the copyright holder;
- it made “best efforts” to ensure that material specified by rights holders was not made available; and/or
- it acted quickly to remove any infringing material of which it was made aware.
These rules apply to services that have been available in the EU for more than three years or have an annual turnover of more than €10m (£8.8m, $11.2m).
Article 13 says it shall “in no way affect legitimate uses” and people will be allowed to use bits of copyright-protected material for the purpose of criticism, review, parody and pastiche. The increasingly popular memes and GIFs will be “specifically excluded” under the Directive although it is unclear as how this will be enforced.
What does this mean in practice?
Currently, internet companies such as Google and YouTube have little incentive to sign fair licensing agreements with rights holders, because they are not considered liable for the content that their users upload.
At present, the internet companies are only obliged to remove infringing content when a rights holder asks them to do so. However, this is cumbersome for rights holders and does not guarantee a fair revenue. Making such companies liable will enhance rights holders’ chances to secure fair licensing agreements, thereby obtaining arguably increased remuneration for the use of their works published online.
The amendments to the final version of the Directive put the onus on the content-sharing services (i.e. the tech/internet giants) to take down anything that is in breach of copyright. Whilst this isn’t explicitly set out in the Directive, some sort of filtering system may be required by content-sharing services such as Google and YouTube.
European Parliament Rapporteur Axel Voss said the legislation was designed to protect people’s livelihoods and that “it helps make the internet ready for the future, a space which benefits everyone, not only a powerful few.”
Conclusion
Despite the mixed reactions, the real test is yet to come.
Whilst the outcome is unpopular with tech/internet giants, it is clear many smaller companies will benefit from the copyright protection offered by the legislation. The key focus will now be on how the Directive is implemented across the EU over the next two years. In particular, with Brexit on the horizon for the UK, whether the UK Government commit to the adoption of the legislation in spite of the controversy caused.
