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Why is the draft copyright directive being proposed? How would you describe the state of EU copyright law?

February 11, 2019, By

The draft European Union Directive on Copyright in the Digital Single Market (the Directive) is designed to better equip copyright owners to protect and enforce their rights against new types of threats posed by the internet.

The EU’s view, shared by the Directive’s supporters, was that existing copyright laws are not designed to deal with the way information is shared and republished online, and that these laws are therefore inadequate to ensure for example that rights owners get paid adequately when their copyright material gets used online – especially in relation to user-posted content (prevalent on platforms like Facebook and YouTube in particular).

Currently, copyright law in the EU remains a matter for each member state, meaning that each territory has its own laws on intellectual property rights and copyright. Nevertheless, through international treaties (such as the Berne Convention) and EU law provisions, most key provisions are harmonized, which makes it easy to protect and enforce copyright across the EU.

This may change for UK-based copyright owners – in the event of a no-deal Brexit, cross-border copyright enforcement may become a much more difficult proposition.

What are Articles 11 and 13 of the new copyright directive? Why are they so divisive?

Articles 11 and 13 of the Directive have proved to be the main sticking points – these are the clauses which have caused the most debate, and ultimately prevented an agreement on the Directive being reached so far.

Article 11 is designed to give copyright owners a way to demand payment each time a third party (including crucially news aggregators such as Google News) link to any of their content. This provision has been dubbed the “link tax”, and its critics have warned that it would open the doors to “copyright trolls”, who would abuse the system for their own gain and effectively hinder the free sharing of information online.

Article 13 is even more controversial. It requires platforms which allow users to upload content (such as Facebook and YouTube) to put in place technical measures stopping users from uploading copyrighted content, such as a scanning algorithm to block certain content. This has been referred to as the “upload filter” provisions of the Directive. Critics (which include the inventor of the World Wide Web and the founder of Wikipedia) have expressed their concern that this would be an unrealistic burden to place on smaller sites and would effectively prevent them from operating legally. Perhaps even more worryingly, they have warned that this provision could effectively be used to enforce widespread censorship, and smother creativity and freedom of expression.

One high profile example of an unwanted consequence of article 13 has been the so-called “meme ban” – in theory the upload filters which article 13 seeks to make compulsory may prevent the uploading and sharing of memes which are made using copyrighted content.

These articles and the Directive are so controversial and divisive because both sides have the support of high profile, respected individuals and organisations, and both have valid arguments which go to the public interest:

  1. The Directive’s supporters are the rights owners, led by the music industry (which was of course hit particularly hard by internet piracy) and their key argument is to ensure that the creators of media content should be protected and allowed to receive appropriate remuneration for their creative work.
  2. The Directive’s critics include large online companies (such as Google) which provide users with platforms on which they can freely share content and ideas. They claim that adding barriers to the sharing of information may stifle freedom of speech and eventually amount to censorship.

What are your views of the draft changes? Are they a big deal?

I assume you are referring to the amendments adopted by the European Parliament in its plenary session on 12 September 2018, after the Directive’s original wording was rejected on 5 July 2018.

Article 11 was amended to clarify that it should not prevent individual users’ legitimate private and non-commercial use of press publications, and that it should not apply to mere hyperlinks, i.e. links without accompanying text.

Article 13 was amended to exclude from its scope certain entities such as small service providers and start-ups, open source software developing platforms etc. It also stated that the measures of article 13 should not prevent the availability of non-infringing works.

Whilst both amendments are certainly a step towards compromise, they do not address or alleviate all of the concerns which have been expressed about the Directive. They do however confirm that the Directive’s authors are now aware of the issues, and are actively considering ways in which to limit the risk of the Directive’s provisions being abused and causing unwanted results.

Ultimately however, if indeed the Directive is implemented, only time will tell whether the safeguards which are put in place are appropriate. We will have to wait and see whether these steps are sufficient to prevent undesirable practices such as copyright trolls, or to stop the effective censorship of certain parts of the internet.

What types of clients do you have dealing with copyright issues in the EU? How are you counseling them to approach the draft directive?

We act for a wide range of clients, from individuals in the creative industries (such as musicians and artists) to SMEs and larger companies, all of whom are affected by copyright in some way.

Where clients are seeking to protect or enforce their rights in other EU member states, we naturally make them aware that there are some legislative proposals which may affect them. Nevertheless, the uncertainty caused by Brexit has caused everyone to accept that, before we know whether and how the UK will exit the EU, there will always be a great many unanswered questions and doubts, including in relation to IP rights.

As such, we advise clients to ensure that they secure any relevant IP rights in the EU as soon as possible (such as EU trade marks or Registered Community Designs). Beyond that, unfortunately, it remains very much a “wait and see” scenario, in which clarity will only come with more detail on Britain’s future relationship with Europe.

Do you think this directive will be passed during the current session? Why or why not?

This is unlikely. There is still much controversy and disagreement surrounding the Directive at all levels, including intense lobbying by powerful stakeholders on each side. This has already caused substantial delays and amendments to the original text – although it is worth noting that these amendments failed to resolve the issues and secure a consensus.

It was hoped that final discussions to agree an overall compromise text would take place on 21 January 2019. Back in September 2018, the European Parliament had adopted some amendments to the text of the proposed Directive (after its original wording had been rejected). The European Council however was unable to agree an amended negotiating mandate, forcing the 21 January talks to be cancelled.

As such, and in the absence of such a mandate, it seems highly unlikely that an agreement should be reached and the Directive adopted before the European Parliament elections in May 2019.

What changes do you think need to occur to improve EU copyright law? Why are these changes needed?

There is much to be said for the harmonization of laws and procedures in different territories. Technology and travel have made the world a much smaller place, and it is important to ensure that creators of intellectual property can enforce their rights across the EU as easily as possible.

The availability of EU trade marks and registered designs, as well as the legislative efforts which have been made (including through the EU) to ensure that rights (and judgments) can be enforced in other countries are all positive steps which ensure that IP protection across Europe is made as easy and cost-effective as possible.

Unfortunately, Brexit threatens to constitute a step back rather than forward in this respect, and there is some concern that leaving the EU without a deal may considerably increase the complexity and cost of protecting and enforcing IP in the EU.

Under the current draft, do you foresee challenges around enforcing the law?

Potentially – this is what much of the debate about articles 11 and 13 has focused on.

Because of the delicate balance which must be struck between the rights of stakeholders on one hand, and the right to free speech and the free sharing of information on the other, the heavy-handed enforcement of the Directive could easily create undesirable results.

In its current form, the enforcement powers which the Directive proposes to grant rights owners are considered by many to be too extensive, and their enforcement would be contrary to other crucial considerations, both legal and ethical. In contrast, supporters of the Directive argue that its purpose is to give rights holders the level of protection they deserve and need.

The most recent amendments made to the Directive do not address the specific concerns in sufficient details to allow for the uncontroversial and problem-free enforcement of its provisions.

How will leaving the EU under Brexit affect this directive’s impact in the UK and upon UK businesses?

If no deal can be agreed for the UK’s exit from the EU, EU law will no longer find its way into the UK legal system – this includes the Directive. In the event of a no-deal Brexit, the Directive’s provisions would not be applicable in the UK.

In contrast, if a deal is agreed, whether the Directive’s provisions find their way into UK law would depend on the terms of this deal.

In terms of the impact on UK businesses, there is a high likelihood that Brexit will cause a degree of disruption. If the UK’s copyright laws are different in any way to those applicable in Europe, the cross-border enforcement of IP rights might become more difficult, and therefore more complex and costlier.

 

Author

Joshua Schuermann is a solicitor at London-based IP specialist firm Briffa, and advises on all areas of Intellectual Property law including contentious and non-contentious matters, with a particular focus on clients from the music, media and arts industries.

As a German-French dual national who grew up and studied in Paris (Sorbonne), Joshua is frequently called upon to advise on cross-border matters involving other EU member states.

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