European Union: Why Is The European Union's Proposed Copyright Directive So Controversial?

Last Updated: 23 July 2018
Article by Catherine Muyl and Marion Cavalier

European harmonization in the field of copyright has always been challenging because the balance between authors' rights and public interest is struck fairly differently from one country to another. The challenges of "the digital age" and how copyright should evolve considering the new possibilities offered by the internet only adds fuel to this fire.

The new Copyright Directive in the Digital Single Market is an attempt from the European Union to better allocate the revenues derived from the internet by creating new obligations for internet platforms to prevent copyright infringements and requiring them to pay for linking to articles or using snippets. Obviously, this is not without controversy within the European Union institutions and the various stakeholders, in particular "internet platforms" and internet users, whether based in Europe or not. The internet is full of articles claiming that the Directive will end the internet as we know it or, for example, that this Directive is the product of a people – the Europeans – who don't like to have fun! More seriously, a statement against the new right that publishers of press publications would get, was recently signed by 169 European Academics.

The importance of this controversy was once again confirmed on Thursday, July 5, 2018. The EU Parliament rejected the draft Directive in its current form and decided that its content will be debated before Parliament in September.

This is a setback for the Directive promoters but not the end of the battle. What it means is that the draft will face further debate and amendments from the Parliament rather than being fast-tracked via the so-called "Trilogue Legislative Process." For the opponents of the Directive, it means that they get another chance to convince the Members of the European Parliament to change the content of the Directive.

The most controversial provisions that led to the vote on Thursday and that will probably be the most hotly debated in September are articles 11 and 13.

Article 11: Creation of a New IP Right for Publishers of Press Publications

Article 11 refers to two categories of players: on the one hand, the publishers of press publications established in the EU and, on the other hand, internet service providers such as internet platforms.

The title of article 11 is "protection of press publications concerning online uses" and it is easy to guess that the goal here is to give publishers the possibility to get compensation when their content is used on the internet. This would be achieved by creating a new intellectual property right, similar to copyright but different, a new "neighboring" right. This new right would last for 20 years.

As a result, people who previously "used" content without paying any fee, would now have to pay, which obviously is not going to please them.

The controversy has focused on hyperlinks and snippets (short summaries of articles). The proposed Directive does not expressly mention snippets or hyperlinks but considering that the proposed neighboring right is not subject to a requirement of investment (contrary to databases) or originality (contrary to copyright), it could allow publishers to prevent the use of snippets or hyperlinks, which would limit freedom of expression and access to information.

Note that there is also a controversy in Europe about whether hyperlinks can infringe copyright, which we commented on this blog.

Press publishers usually do not like these snippets and hyperlinks because readers may get the information they were seeking without having to read the full article. As a result, the number of clicks and the advertising revenues derived therefrom are not as high as they could be. On the other hand, the Directive's detractors are arguing that hyperlinks that include snippets are in fact advertising press articles because users are more likely to click on the link and be redirected to the press publishers' websites.

Article 13: Internet Platforms' Obligation to Get Licenses Or Prevent Infringements

This article is even more controversial. Those who are targeted here are a narrower category of providers, the "online content sharing service providers", i.e. internet platforms such as YouTube. Article 13 would impose fairly heavy new obligations on these entities by requiring them affirmatively to obtain the right holders' authorization and, if no such authorization has been obtained, to take effective and proportionate measures to prevent those works from being made available, including by way of "effective technologies" (i.e. recognition algorithms).

Here again, one can understand why internet platforms complain: these new obligations mean more costs.

And here again, many arguments are raised against this provision. First, from a legal point of view, some argue that the new provision is inconsistent with other European provisions, in particular the E-commerce Directive or the European Union Charter of Fundamental Rights. From a technical point of view, others doubt whether it is feasible to conclude licensing agreements with all the right holders or to create such "effective technologies" in relation to all sorts of creations.

On the internet, the controversy focuses on "memes." Memes are pictures or photos of well-known characters protected by copyright with comments of a humoristic or political nature. Some argue that the "effective technologies" that should be implemented could block memes because these technologies would be unable to differentiate between actual infringements and uses that should qualify as legitimate parody, for example:

The Directive is expected to be subject to a final vote by the European Parliament at the end of 2018 or the beginning of 2019. Then, each Member State will have to implement it into its national law, which will give rise to even more controversies. Additionally, since the rules set out in the Directive are often not very detailed, ?national rules may end up being quite different from one Member State to another.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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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