After three years of negotiations, on 26 March 2019, against considerable reservations and despite Europe-wide protests, the EU Parliament voted for the full implementation of the EU Directive on the harmonization of copyrights in the EU "Digital Single Market". The aim of the directive is to ensure fair remuneration for authors for the use of their works on the Internet, particularly on platforms such as YouTube, Facebook or Google-News. The draft of the Directive has been the subject of heated debates in the weeks leading up to the vote in the EU Parliament and has led tens of thousands of people across the EU to protest against the implementation of the Directive.

The reason for the protests were two regulations contained in the draft directive; Article 15 (old 11) and Article 17 (old 13). These articles were intended to ensure fairer remuneration for the online use of press articles on the one hand and the accessibility of protected works on the Internet on the other. According to experts and critics, the implementation of these articles will lead to a considerable restriction of the fundamental right of freedom of expression and information (Art. 10 ECHR) and will have a lasting adverse effect on the use of the Internet.

Article 15 (11) - Protection of press publications concerning online use

The minor point of criticism regarding the Directive was Article 15 (11), which aims to provide better protection for the use of press publications on the Internet. To ensure a fair remuneration EU-based press publishers will be able to claim rights to their articles for reproduction and making them publicly available in the course of online use. Private or non-commercial use, the setting of hyperlinks as well as the use of individual words or very short extracts from press publications will continue to be permitted without restrictions. Contrary to many fears the sharing of press publications on social media platforms by private individuals will not be affected by the Directive. Also the news service platform Google-News, which provides an overview of articles of various press publishers and links them via hyperlinks, will be able to continue its service with minor restrictions.

Article 17 (13) - Use of protected content by service providers

Impetus for public protests and massive criticism against the Directive was Article 17 (13). According to Article 17 (13) Internet companies will be responsible for content uploaded and made publicly available on their platforms by users. For the online publication of works protected by copyrights, platforms such as YouTube or Facebook will have to obtain the consent of rights holders, for example by concluding licensing agreements. The liability privilege for service providers of the EU E-Commerce Directive 2000/31/EC, which requires service providers to act only after becoming aware of unlawful content on their platform, no longer applies to these cases. This means that uploaded content must be reviewed by service providers before it can be uploaded and made available to public. In practice, such a content review by platforms such as YouTube or Facebook, with worldwide several million content uploads per day, will only be possible by using "Upload-Filters". This is precisely where the criticism of Article 17 (13) comes in. Although the Directive explicitly provides exceptions from the obligation to obtain consent of right holders for quotations, criticism, reviews, cartoons or parody, the use of filter systems will inevitably lead to the blocking of legitimate content ("Overblocking"), as upload filter systems are not yet capable to distinguish between lawful and unlawful content, which will inherently constitute a restriction of the fundamental right to freedom of expression (Art. 10 ECHR).

Article 17 (13) also provides for an exception of its application for start-ups and small businesses. Service providers that have been offering their services to the public for less than three years and do not exceed an annual turnover of EUR 10 million will not be subject to the "filter-obligations". They are only obliged to make every effort to obtain the consent of the right holders for publishing copyright protected work. Such companies remain liable under the hosting provider privilege of the e-commerce directive (described above).

In any case, the Directive states that the application of Article 17 (13) must not lead to general monitoring of uploaded content or a restriction of lawfully uploaded user content. However, due to the fact that platforms like Youtube or Facebook will not be capable to comply with the obligations of Article 17 (13) other than by implementing filter systems, general monitoring or restrictions of lawfully uploaded content will not be preventable.

What's the next step?

The Directive must be accepted by all Member States within the next weeks, however, this is no more than a formal act. Afterwards the Directive will be published and Member States must transpose the regulations of the Directive into national laws within two years. It remains to be seen in what form the Directive, in particular Article 17 (13), will be implemented in the Member States and whether the obligation to use filters system will be implemented in national laws.

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.