European Union: Article 13 Of The New Copyright Directive Shown A Red Card

On 5 July 2018 627 of 751 members of the European Parliament voted on the proposed Copyright Directive, with 318 voting to reject articles 11 and 13, the link tax and upload filters, respectively.

This rejection appears to validate industry views. Recently, 70 influential tech leaders, including Vint Cerf and Tim Berners-Lee, signed a letter opposing Article 13 of the proposed new Copyright Directive, which they called "an imminent threat to the future" of the internet.

Background

An expert committee of MEPs recently voted to accept major changes to European copyright law (draft text here), which some technology experts argue could change the nature of the internet. Included in the new Directive is the much-maligned Article 13, which critics warn could put an end to memes, remixes and other user-generated content. One organisation opposed to the changes called it a "dark day".

However, copyright owners like the Independent Music Companies Association (Impala) welcomed the committee vote, saying, via executive chair Helen Smith:

"This is a strong and unambiguous message sent by the European Parliament. It clarifies what the music sector has been saying for years: if you are in the business of distributing music or other creative works, you need a licence, clear and simple. It's time for the digital market to catch up with progress."

What is the potential effect of Article 13?

Article 13 seeks to put the onus on websites to enforce copyright in content uploaded by users and could mean that every online platform that allows users to post text, sounds, code or images will need some form of content-recognition system to review all material that users upload as well as a fresh approach to a takedown procedure. This is a change from the existing notice and take down procedure under the eCommerce Directive which is responsive. The system proposed under Article 13 will require the website owner to take proactive steps.

Who is it directed at?

The Directive and Article 13 is directed at online content sharing service providers (OCSSP) which is any online service provider whose main or one of the main purposes is to store and give the public access to a large amount of works or other subject-matter uploaded by its users which it organises and promotes for profit sharing purposes. This is of course a very broad definition and captures many online players in the content space. However, internet service providers, private cloud service providers and online marketplaces whose main activity is online retail are considered out of scope (see Recital 37a).

What are the details of Article 13?

The latest text is the draft of 23 April 2018 and sets out 8 paragraphs in Article 13. The main points are as follows:

  1. Member States must introduce national legislation clarifying that when a OCSSP gives the public access to copyright-protected works or other protected subject matter uploaded by its users the OCSSP performs copyright protected acts (communication to the public or making available to the public). This is significant because it will harmonise the law on this issue across the EU. Because of this OCSSPs shall be obliged to seek an authorisation, ie a licence, from the owner of the rights in the content. Where no authorisation is obtained the OCSSP is obliged to take steps to prevent the availability on its service of those works and other subject matter, including through the application of measures referred to in paragraph 4. The vague drafting here seems to indicate some form of a blanket ban in the absence of the authorisation.
  2. The Article goes on to say that in the absence of such an authorisation the OCSSP will infringe copyright unless:

    1. It demonstrates it made best efforts to prevent the availability of such works on its services by using effective and proportionate measures and informed by information supplied by the rightholders in question
    2. upon notification by rightholders of specific unauthorised content, act expeditiously to remove or disable access to these and make their best efforts to prevent their future availability
  3. The measures to be deployed are set out in Article 13(5), including the nature and size of the services, including their audience. Recital 38e describes some of the parameters of the measures and allows for a variance according to the type of content for which the measures are applied. For the purposes of assessing the proportionality of measures to be taken by the OSCCPs, the state of the art of existing technologies for the different types of content as well as the size of the services should be taken into account notably whether they are small and micro enterprises. Guidance on the application of these measures shall be issued by the Commission in consultation with the OSCCPs, rightholders and other relevant stakeholders. This would mean that the exact manner in which the measures should be applied could remain unclear, and subject to change, even after the Directive is adopted.
  4. Of course, most infringement allegations are not "slam dunks" and grey areas in the form of national copyright exceptions exist ie fair dealing/parody in context of a meme. Article 13(7) specifically recognises this point. OCSSPs shall put in place a complaint and redress mechanism that is available to users of the service in case of disputes over the application of the measures to their content. Complaints submitted under this mechanism shall be processed by the OCSSP in cooperation with relevant rightholders within a reasonable period of time. Rightholders shall duly justify the reasons for their requests to remove or block access to their specific works or other subject matter. Member States shall endeavour to put in place independent bodies to assess complaints related to the application of the measures.
  5. The hosting exemption/safe harbor available under Article 14 of the E-Commerce Directive is not available to OSCCPs in relation to the copyright acts covered under no. 1 above.

Next Steps

While the proposals as drafted have been rejected, this isn't the end of the two articles or the Directive, which will now be discussed in Parliament in September. Overall, the negotiations have no formal timeline but some commentators have suggested that Parliament will press for an agreement on a final version before the end of the year which now appears to be ambitious. This version will then have to be approved by both the Council and the Parliament. The current draft then allows Member States 24 months to transpose the final text into national legislation. However, this latest setback could interrupt those timelines and plans.

Conclusion

It's difficult to argue against the main points being made by the tech industry; the Directive is a massive shift from the current copyright environment. There will be significant investment in resources and costs to design and operate the filtering technology and take down and complaint procedure. Before any of that can happen major Commission and industry (both the OSCCPs and rightholders) engagement is required to agree a scope for what appropriate measures and what best efforts (an expression that has different interpretations in common and civil law jurisdictions) might look like. Reasonable agreement on these measures and a softening of the drafting in sub-article 1 regarding the ban, in particular, may result in progress. A further complication lies in the variance in the scope of Member State copyright exceptions and how that might affect the availability of content on a Member State by Member State basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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