In what is perhaps an indication of the shape of things to come when we try and predict what divergence there will be between EU and UK laws in future, the UK government has confirmed that it will not implement the European Union’s Article 13 of the Copyright Directive.
Article 13 was perhaps the most controversial of all the provisions on the Copyright Directive. Originally supported by the UK along with 18 other member states of the EU, Article 13 holds businesses accountable for not removing copyrighted content uploaded to their sites by users. The highest obligations were placed on big business. Smaller businesses which were defined as businesses which have been active for less than three years, have an annual turnover below 10 million and less than 5 million visitors were ring fenced for a lighter touch. Even so the effect on small business is that after 3 years a business automatically falls out of the exception and would have to comply with the highest standard even if it was not yet a tech giant. These businesses would of course be far less able to afford the type of technology measures being deployed by the tech giants to identify and or block infringing material. The real effect of these provisions therefore could well be to rid the internet of these smaller players and so reduce competition in this field. It could in effect allow the giants to share the whole market between themselves and reduce competition and consumer choice.
The penalty for failing in the duties imposed were not specified in the Directive but it is assumed that they will be along the lines found in the domestic laws of each Member State.
In the UK damages are payable to compensate the copyright owner for the use of their work. Punishment however can also involve a fine and even imprisonment as copyright infringement is both a civil and criminal offence.
In its course through the EU institutions, Article 13 bitterly divided opinion. Welcomed in the main by copyright owners it was strongly opposed by the tech giants who lobbied against it claiming it would be impossible to uphold the standard it was imposing and could even result in the platform to a service within the platform having to close. In reality the biggest impact could be on the smaller businesses who fail to comply with the obligations and the financial burden placed on them by these rules.
The objectors focused on fears the new laws would throttle creativity and put an end to memes. This concern is probably less well founded as the laws right across the EU contain exception for the use of copyright material for the purposes of caricature, parody and pastiche.
While the UK will not adopt Art 13, all other Member States have until June 2021 to implement it into their domestic legislation.
Margaret Briffa, Solicitor
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