On 20 June 2018, the European Parliament’s Committee on Legal Affairs (JURI) officially approved the Directive of the European Parliament and of the Council on Copyright in the Digital Single Market (the Copyright Directive), meaning the Copyright Directive is one step closer to becoming EU law. Although most of the Copyright Directive simply updates technical language for copyright law to meet the requirements of the digital age, it also includes two highly controversial provisions which have been the subject of intense lobbying.
Article 13 reverses the established legal precedent that individual users, rather than platforms, are responsible for the content published online. It requires internet service providers (ISPs), platforms and virtually every commercial website that allows its users to post text, sound, software, still or moving images (or any other work which can be copyrighted) to be monitored for copyright infringement. Even the sharing of memes (an image, video, piece of text that is copied and spread rapidly by internet users, often with slight variations) could be caught up in the new rules if they are based on copyrighted images.
Article 11 grants rights holders and news publishers greater protection against the online exploitation of their content. The intention is that granting these rights to news publishers, separate from the copyright in individual articles, will provide them with greater leverage to negotiate licence agreements with news aggregators and other online service providers who make use of their content online.
Arguments for and against
Article 13 requires platforms to take measures such as “effective content recognition technologies” to ensure the content published online by its users does not infringe copyright. Critics of Article 13 argue that this requirement means only huge platforms will have the resources to monitor its users’ comments and content. Smaller companies will not be able to afford the costs of compliance.
A coalition of 70 internet pioneers (including World Wide Web inventor, Sir Tim Berners-Lee and Wikipedia founder, Jimmy Wales) argued in an open letter to the EU that Article 13 would transform the Internet “from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users”. They argue that platforms will be forced to create incredibly sophisticated upload filters (or ‘censorship machines’) because it would be the only way to prevent copyright infringement. Given there isn’t a clear fair use clause in the proposed Copyright Directive, critics fear that legitimate speech is at risk because it could get caught up in and removed by such filters.
On the other hand, supporters of the Copyright Directive, including Axel Voss, the centre-right MEP who is steering the proposal through the European Parliament, argue that Article 13 does not require upload filters as a means of compliance and that Article 13 makes it clear that measures to prevent copyright infringement are only required to be “appropriate and proportionate”.
News publishers’ associations have welcomed Article 11 and underlined that this right is in line with long standing parallel rights for film producers, broadcasters and other media companies. Article 11 aims to put news publishers in a better negotiating position in their contractual relations with online services which use and enable access to their content. In theory this better negotiating position could lead to news publishers being better remunerated, addressing the ever-increasing gap between the value-generating creatives and the platforms that earn profit from their works.
However, critics cite the fear that news publishers will use this right to charge search engines to display excerpts from copyright works in search results, which in turn could inhibit access to news publications. Green MEP, Julia Reda, who has been the leading opposition to the Copyright Directive, argues Article 11 is a tax on linking, which would result in only bigger sites, such as Google and Facebook, using their power to negotiate favourable rates but smaller organisations will be disadvantaged. She also argues this could boost ‘fake news’ given propaganda outlets are unlikely to charge for snippets and so their content could as a result become more visible on social networks.
What happens next?
Both Article 11 and Article 13 will not become law until the Copyright Directive is approved by the entire European Parliament in a plenary vote.
On July 4 or 5 2018, the European Parliament will either vote to confirm the JURI result or re-open it for debate. Afterwards, the Copyright Directive is set to be debated in what are known as “trilogue negotiations”, which are closed-door discussions between EU legislators and member states. These are intended to speed the process of adopting new laws, but critics say they are opaque and undemocratic. Whether or not the Copyright Directive will be subject to such negotiations is undecided. The JURI voted on 20 June that it should be, but MEPs have a chance to object in the plenary vote in early July. If the trilogues do go ahead, it increases the chances that Articles 11 and 13 will become law.
If the European Parliament votes to approve the Copyright Directive, the formal adoption process for the Copyright Directive will commence in spring 2019. Each EU member state needs to implement the Copyright Directive into their national legislation which is expected to occur in spring 2021. Whether the UK will implement the Copyright Directive into UK law following Brexit remains to be seen.
Update – 18 July 2018
On 5 July 2018, the European Parliament rejected the Copyright Directive meaning it will not become law in its current form. This further re-opens the debate on the Copyright Directive and allows for revisions to be made to the text. It is not yet known whether Articles 11 and 13 will be removed or amended.
The European Parliament is due to vote on any prospective changes to the Copyright Directive on 12 September 2018.
The rejection inevitably sets back the timelines for the formal adoption process for the Copyright Directive. If eventually adopted by the European Parliament, the Copyright Directive will be sent to the EU Council, which also has to approve it – a process that could take months. Usually, the European Parliament and the EU Council agree, but if they do not, they will form a committee to try and reach a consensus. When fully approved by the European Parliament, each EU member state has to implement the Copyright Directive into their national legislation. This can take a year or two as each country navigates its own legal and parliamentary system.
Also note that Article 3 of the Copyright Directive relating to text and data mining, which is not discussed in this article, is also a contested part of the Copyright Directive in relation to its effect on AI start-ups.