Europe passes controversial Copyright Directive

The European Parliament has passed a new Copyright Directive, including a number of highly controversial articles

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The European Parliament has voted by 348 to 274 to approve a sweeping new Copyright Directive, which includes controversial clauses that critics say could undermine freedom of expression online, and fundamentally change the very nature of the internet.

The furore hinges on Article 11 and Article 13 of the directive, which respectively state that search engines and news aggregators should pay to link to news websites, and that large technology companies such as Google or Facebook should be responsible for any material posted without a copyright licence.

According to rapporteur and MEP Axel Voss: “This directive is an important step towards correcting a situation which has allowed a few companies to earn huge sums of money without properly remunerating the thousands of creatives and journalists whose work they depend on.

“This is a directive which protects people’s living, safeguards democracy by defending a diverse media landscape, entrenches freedom of expression, and encourages startups and technological development. It helps make the internet ready for the future, a space which benefits everyone, not only a powerful few.”

However, detractors say that Article 13, in particular, could result in the effective banning of a number of types of user-generated or user-altered content that over the past 20 years have become fundamental elements of how internet users interact and socialise.

A notable concern is that because the law means social media platforms such as Facebook, Instagram, Twitter, Tumblr and YouTube that host such user-generated content will have to install upload filters to prevent copyrighted material making its way onto their platforms, they would, by extension, have to ban memes, static images, .gif or video files used in a humorous manner, many of which incorporate material drawn from popular TV shows, music videos and so on.

The European Parliament claimed that memes, in particular, were specifically excluded from the directive, and Voss argued that the adopted text contained multiple provisions designed to ensure the internet remains a safe space for free expression.

“These provisions were not in themselves necessary, because the directive will not be creating any new rights for rights holders. Yet we listened to the concerns raised and chose to doubly guarantee the freedom of expression. The ‘meme’, the ‘gif’, the ‘snippet’ are now protected more than ever before,” he said.

Dark day for internet freedom

However, MEP Julia Reda, who represents the German Pirate Party, spoke on Twitter of a “dark day for internet freedom”, while TechUK’s associate policy director, Giles Derrington, said the European Union (EU) had failed to strike the right balance between protecting copyright and ensuring freedom of expression.

“We are particularly concerned about the impact the new Copyright Directive will have on competition within the digital sector given the high cost of meeting the requirements the directive now creates. The technical challenges created by these new rules show the continued need for lawmakers to better understand the technologies and businesses they seek to regulate. Policy-makers have to take responsibility for the consequences of pursuing simplistic solutions to complex problems,” he said.

“The technical challenges created by these new rules show the continued need for lawmakers to better understand the technologies and businesses they seek to regulate”
Giles Derrington, TechUK

“Article 13 brings with it the very real prospect that internet users across Europe will soon no longer be able to access swathes of content they’ve been accustomed to,” added Simon Migliano, head of research at Top10VPN.com, a virtual private network (VPN) comparison service.

“As we’ve seen in the past, sweeping and ham-fisted laws invariably end up harming the wider ecosystem. Article 13’s well-intended copyright laws could instead see the thriving online creation community severely stifled. Companies hosting user-generated content will have to implement content filters that are often too rigid and overzealous in their blocking.

“A generation that has been brought up on memes and video platforms like YouTube is hardly likely to take this unprecedentedly far-reaching legislation lying down. It will not come as a surprise to see millions of European web users turning to anti-censorship tools like VPNs in a bid to retain their internet freedoms.”

Google, which campaigned extensively against the directive to the extent that many notable YouTubers mobilised against it, said in a brief statement: “The EU Copyright Directive is improved but will still lead to legal uncertainty and will hurt Europe’s creative and digital economies. The details matter, and we look forward to working with policy-makers, publishers, creators and rights holders as EU member states move to implement these new rules.”

Legal perspective

Looking back at the Copyright Directive’s tumultuous passage, Reed Smith counsel Sophie Goossens said the inclusion of Article 13 and the drive to close the so-called “value gap” had been a long battle waged by rights holders, especially in the music industry, stemming from the complaint that technology companies have made millions from music content without paying royalties.

“The largest technology platforms have already implemented upload filters, but such technology can be expensive to acquire or take a long time, and a lot of money, to develop internally. There is a concern that it will be the smaller, European technology companies that will be most severely impacted by this new requirement, rather than the US technology giants,” she said.

Goossens noted that the requirement for upload filters was controversial, but added it would only apply to those with platforms older than three years, or with turnover of over €10m, and added that platform operators would only be liable for failure to filter works for which the rights holders’ had provided them with relevant and necessary information.

She acknowledged that the directive put many social media companies in a difficult position, saying: “Platform operators might choose to play it safe by taking a more cautious approach to blocking content that might lead to it being liable for copyright infringement. It also puts platform operators in the uncomfortable position of having to assess whether a particular piece of content benefits from a copyright exception – an assessment that, in many cases, it may not be qualified to make.”

Goossens also noted that Article 13 draws a clear distinction between professional and non-professional users.

“Any licence taken by a platform will cover a consumer’s act of uploading that content to the platform. However, this is not the case for professional users (being users acting in a commercial capacity or generating significant revenues on the platform),” she said.

“It remains to be seen whether platforms will take a stricter approach to these professional users, as they will need to rely on the permissions and licences taken by the latter to upload and communicate their works via the platform. YouTubers and self-releasing artists are likely to be most impacted.”

Next steps

Following the EU Copyright Directive’s passage through the European Parliament, each EU member state now has two years to implement the text in their own national law.

We can expect certain member states to introduce their own nuances and clarifications when doing so, and so it will be interesting to observe how harmonised the position is across Europe at the end of the implementation period,” she said.

TechUK’s Derrington said that in the UK, the impact of Brexit also needed to be taken into account.

“It is now critical that government gives clear direction on how the UK will use the flexibility the directive affords on text and data mining tools, and makes clear how the UK will approach the implementation phase of the Copyright Directive given the UK’s departure from the EU,” he said.

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