23 September 2018

Re-Draft Of Copyright Directive Passed By EU Parliament

Brodies LLP


Brodies LLP
After two years of heated debate, the European Parliament have voted in favour of new copyright laws, said to provide IP owners with better protection in the digital age.
European Union Intellectual Property
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After two years of heated debate, the European Parliament have voted in favour of new copyright laws, said to provide IP owners with better protection in the digital age.

The proposal for the EU Directive on Copyright in the Digital Single Market ("the Directive") is intended to modernise the existing EU copyright framework to keep up with the evolution of digital technology and harmonise national copyright regimes.

See our blogs here and here for a detailed look into the Directive and why it has been marred with controversy.

Predominantly based on the wording of Articles 11 and 13, the Directive was rejected by MEPs in July of this year. After revisiting and amending, the following re-draft of the Directive this time won MEPs round. This will now form the basis of discussions between co-legislators but do these changes strike the right balance between protecting IP and not interfering with access to online content and entertainment?

What changes have been made?

Article 11 originally set out a blanket right for publishers of press publications to prohibit the digital reproduction and communication of their work.

Criticism was made that legitimate content sharing would be inhibited and the operation of linking and framing on the internet would be curtailed as links to even small amounts of content would have to be paid for – the "link tax".

In light of these criticisms, the following amendments were made:

  • "legitimate private and non-commercial use of press publications by individual users" is allowed; and
  • sharing of hyperlinks to press publications will not be prohibited.

Article 13 requires service providers, who store and allow access to and/or streaming of significant amounts of copyrighted materials, to filter all uploads to their platforms. This would involve utilising similar technology as that currently in use by leading platforms such as YouTube.

To appease concerns raised by smaller providers and meme-creators alike, whilst ensuring protection for rights holders, the amended text sets out that:

  • microenterprises/small sized enterprises will not fall under the definition of service providers;
  • service providers acting in a non-commercial capacity i.e. Wikipedia or educational/scientific repositories, will be exempt;
  • the Directive will not extend to works covered by an exception or limitation under copyright laws i.e. parody; and
  • service providers will have to enter appropriate licensing agreements and/or work with rights holders to make sure no unauthorised works are made available.

What does it all meme?

For rights holders

The Directive aims to make big platforms responsible for copyright infringement and allows copyright owners the same rights they already have offline.

Article 11 seeks to remunerate both writer and publisher for use of their work. Similarly, Article 13 aims to make platforms such as YouTube more akin to Spotify, for example. Service providers must therefore work with rights holders to ensure their work is protected.

For individuals

Under the amended terms of Article 11, sharing a hyperlink to a BBC News story on your Twitter account or reposting a paragraph of an article on your LinkedIn profile will not make you liable to remunerate the author.

Following Article 13, meme-lovers should be able to rejoice that they can benefit from the copyright exception of parody and continue to generate memes. However, the current automated filtering technologies are not sophisticated enough to recognise such exceptions. This means that not only could these materials be filtered out but so could legitimate content.

For service providers

Whilst more administratively burdensome, the cost of the "link tax", under Article 11 or implementation of advanced filters under Article 13 are unlikely to have significant consequences for large service providers, such as Google or Facebook.

However, the concerns regarding smaller publishing outfits suffering have not been addressed. The amendments include that the burden on SMEs must be "appropriate" but no guidance has been provided as to this threshold.

What's next?

After the 2:1 vote victory on Tuesday, it is unlikely that the Directive will be rejected at a later stage. However, it awaits a final vote in January 2019 and there is scope for subsequent amendments to be made until then. Whether the right balance will be struck between rights holders' interests, freedom of speech and service providers' obligations during this time remains to be seen.

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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