On 26th March 2019 the Copyright Directive received final approval of the European Parliament.
The draft Directive first published in September 2016 introduced sweeping changes to the way in which copyright will be enforced in the EU. The Directive has been on a long and fraught journey but is now due to be implemented in each member state of the European Union by the summer of 2021. The two contentious articles which most of the debate has focused on are Articles 11 and 13 known respectively as the ‘link tax’ and ‘upload filter’.
The creative and tech world remain deeply divided about the reforms that the Directive will bring in. While the creative world sees the changes as essential to ensure that their work is not used without permission and that they are fairly remunerated for what they do, the tech world led by Google and internet freedom activists has campaigned ferociously against the Directive saying that the reforms will bring the internet to a standstill.
Art 11, provides a framework for charging search engines and news aggregators for displaying snippets of news they are linking to. It could result in the tech companies simply blocking content to avoid payment, even though the rules do not apply to very short extracts. The exemption is presumably intended to let the visitor know the content of the work before deciding whether they want to read it. The right last for 20 years from first publication. A law of this kind has already failed in Germany and Spain so it is not clear how successful it will be once the law applies in all member states.
Despite the anticipated problems which Article 11 may face, Article 13 remains the most controversial provision. Up to now it’s been the content owners responsibility to police the use of their content and issue take down requests where work is used without permission. The Directive reverses that. It provides that anyone sharing copyrighted content must get permission from the owner or at least use best possible effort to get permission. As content covers movies, films, songs, images, gifs, memes and screen shots so this will be no mean task. In order to comply tech companies will be forced to use filters to evaluate material before it goes online. The tech giants have been developing these filters for years in anticipation of just such a law but do not yet have the ultimate working product. Smaller companies will be exempt for the rules for a while. But all tech companies will have to comply if they have been established for three years or more, so catching a lot of smaller companies irrespective of turnover and visitor number. One solution for smaller businesses no doubt will be to licence the filtering technology they need from the tech giants. In this way although there will be benefit to content owners whose work will not be used quite so widely without permission the fact that sophisticated technology will be needed to comply only increases the hold of the tech giants on the industry could well increase as they seek to recoup development costs by licensing the very same technology to smaller businesses.
Finally while most of the debate has focused on Articles 11 and 13, Articles 14 to 16 also expand the rights of creators in the value chain and make content users obliged to be more transparent on reporting revenue generated from their work and remunerating creatives fairly for the use made of their work.
The concern is that the Directive once implemented would lead to a far more locked down and less creative version of the internet we are experiencing today and that there will also be an increasing dominance of the tech giants as small tech companies struggle to comply with the new rules. In terms of how this will actually effect the way in which we use the internet and the extent to which those who have campaigned against the law will have their freedom of expression curtailed is difficult to judge at this point. This is a Directive rather than a regulation, meaning that the way in which this is transposed into national law will be left to each member state.
The position in the UK is unclear until it is known on what basis the UK leaves the EU. The timing of this legislation may mean that there is no obligation on the UK to implement it into UK law. Even if that is the case there is likely to be support for implementation of this or similar laws to protect the creative industries who contribute so much to the country’s wealth. All UK business going business in the EU would of course also have to comply in any event.
Written by Margaret Briffa, Solicitor