IP Information & News

God save our gracious meme — the EU Copyright Directive explained

Gareth Price

By Gareth Price

Partner

“Today the European Parliament has chosen to defend European culture and creativity, putting an end to the digital wild west”. So tweeted the President of the European Parliament, following this week’s vote in favour of modernising EU copyright law. But how realistic is the new directive in practice? Gareth Price looks at this controversial new law and outlines the key benefits, issues and what happens next.

The Copyright Directive was first proposed in 2016, with the intention of making EU copyright law suitable for the digital age and to ensure that journalists, publishers and authors receive fair reward for their creations. The draft Directive has been subject to large amounts of lobbying since its proposal was rejected by the European Parliament in July 2018. Following amendments, the vote yesterday in Strasbourg found 438 members in favour, 226 against and 39 abstentions — a resounding agreement. However, there are still a couple of main sticking points that could cause trouble for content-sharing platforms and their users.

Filtering

Article 13 of the Directive refers to the so-called ‘upload filter’. This requires content-sharing platforms to check all uploaded content before it gets published, to ensure that permission has been granted by the copyright holder to prevent the publication of ‘infringing material’.

This provision has been hugely divisive. Some describe it as providing the means for the ‘arbitrary censorship of the internet’. Others are supportive, hoping that the filters will better protect content creators. Everything from tweets to software code will need to be checked and anything potentially infringing must be censored. While this can be done using filtering software, this tends to be error-prone and very expensive. Such software may well improve in the future, but we may not be quite ready to effectively filter everything today.

Link tax

Article 11 refers to the so-called ‘link tax’. This requires online platforms to pay news organisations in order to use their content. It’s intended that this will bridge the value gap between the levels of payment received by authors and performers compared to the profits made by the platforms which make the works widely available. The Parliament has, since the vote, clarified that this provision is not designed to catch the sharing of links to content such as new stories.

A link tax is not new to all EU Member States. A similar provision was introduced in Germany in 2013, but many publishers have not chosen to use the additional protection. It would appear that the financial value to publishers of allowing online platforms to share their new articles may be greater than the protection afforded by the law in Germany.

Next steps

If you’re concerned, bear in mind that there’s still a long way to go before the EU Copyright Directive becomes law. A final vote on the Directive is scheduled for January 2019. Between now and then, there are sure to be negotiations between EU parliamentarians and their counterparts in member states. As to whether the new law will ever be implemented in the UK, we’ll have to continue waiting on the outcome of Brexit negotiations…

As ever, the devil will be in the detail of how the final directive is interpreted by individual member states. The Parliament has stated that the new law is intended “to ensure fair pay for artists and journalists in the digital world” — and this is a laudable starting point. On the other hand, critics claim that the new law could fundamentally change the internet as we know it.

Few would argue that highly profitable internet giants shouldn’t pay more to the authors of the content on which their success in built. However, it remains to be seen how some of the more controversial changes to the law are put into practice. Is it realistic or practical for all content-sharing platforms to implement filters that can sift out copyright-protected content without disrupting the free flow of legitimate content? Will this lead to the large providers having a greater monopoly, as small providers cannot afford filtering software? Will news providers waive their right to the new link tax provisions in order to keep their stories on online platforms?

Unfortunately, only time will answer these questions. But it seems unlikely that the sheriffs protecting rights holders on the internet will be out of work anytime soon.

Find out more about copyright in general and our services here. Or, get in touch with me if you need advice on any copyright issues.

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