Will the EU Copyright Directive ‘break the internet’?

A new European Union law proposed for copyrighted material has provoked strong reactions from all sides – but what does it mean?

Copyright protects original written, dramatic, musical and artistic works. It applies to everything from novels to software, to sound recordings and films. It gives an exclusive right to use the work and prevent others copying it. Copyright will be infringed if a “substantial part” of the work is copied (considered qualitatively) and no exception applies.

Protection arises automatically and “before the ink dries”. The author or creator will be the first owner of copyright in written, dramatic, musical and artistic work, unless it is created in the course of employment, in which case the employer will own it.

Copyright applies to information on a webpage, email content and material shared over a peer-to-peer network. Typing your own original words into a keyboard will therefore create a copyrighted work – although, if you delete it, proving so may be difficult.

When browsing on a computer, copies of copyrighted works will be reproduced on the screen used to view the information and in the computer’s memory – caching. Without caching, the internet in its present state would be unable to cope with data traffic and would not function properly. Applying copyright protection, an internet user could be infringing copyright for opening a webpage that has the latest bestselling novel on it.

But there is an exception to copyright infringement for temporary acts of reproduction if certain elements are fulfilled. In a landmark case, NLA v Meltwater, heard in the UK’s Supreme Court and which resulted in questions referred on to the Court of Justice of the European Union, it was determined that on-screen and cached copies of websites generated by users while browsing may be created without authorisation from copyright holders.

The case was important because, if the exception did not apply, millions of internet users would have been infringing copyright by ordinary browsing of the web.

However, a person downloading copyrighted material without permission or an exception will still fall foul of copyright infringement. Uploading copyrighted material without authorisation or an applicable exception will infringe copyright by communicating a work to the public.

Read more about the EU Copyright Directive

The European parliament is expected to formalise the Directive on Copyright in the Digital Single Market at a final vote in January 2019. The directive requires EU countries to enact copyright laws and two articles in the directive are causing particular concern:

Link tax – Article 11 intends to give publishers compensation for use of their publications online. There are questions over how this will work in practice – for instance, how do you value the use of a particular article or an extract from it? Is a payment required for hyperlinking?

Google may be required to pay compensation for providing headlines and extracts in its Google News service. However, a publisher may decide to allow use of its content in order to attract more readers.

Upload filter – Article 13 requires “information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users” to stop users sharing unlawful copyrighted material. This is widely interpreted to be directed at tech giants such as Facebook, Twitter and YouTube.

There is an obligation imposed to take measures to ensure the functioning of agreements for the use of, and to prevent the availability of, rightsholders’ work.

This represents a shift in enforcing copyright. Copyright holders used to be responsible for enforcing their rights before but, under the directive, an obligation is placed on those running the tech platforms to take steps to help. Depending on how the directive is implemented, copyright holders may be able to take action against the tech platforms if they do not meet this obligation.

Change in attitude

Over time, there has been a significant change in tack, from rightsholders pursuing individuals unlawfully downloading, to targeting those making the works available online. This change has emphasised the importance of targeting the source of the problem, and it is easier to target the few rather than the many.

It used to be commonplace for individuals downloading content at home, or even companies, to receive notices claiming they had infringed copyright. These notices were sometimes sent in the hope of scaring internet users into paying and the correct individual was not always targeted – another person using the bill payer’s IP address may have been responsible for the download.

This resulted in the government issuing guidance supporting the notion that it was up to the copyright holders to prove who had infringed copyright.

The directive seeks to place some of the obligation for policing copyright infringement on tech giants and give another option to copyright holders. It remains to be seen how the new directive will be implemented and its effect.

One final point – whether or not the UK will be subject to the directive is subject to any agreement reached between the UK and the EU on Brexit. The government may decide to harmonise the UK’s laws with the EU to protect the interests of rightsholders.

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