Précis

Europe continues to push forward its Digital Single Market strategy with its latest proposals to modernise copyright laws.

What?

In his 2016 State of the Union address, European Commission President Jean-Claude Juncker announced his intention for “journalists, publishers and authors to be paid fairly for their work, whether it is made in studios or living rooms, whether it is disseminated offline or online, whether it is published via a copying machine or commercially hyperlinked on the web."

This comes as part of the Commission’s Digital Single Market strategy, one aim of which is to create a fairer and sustainable marketplace for creators and the press. As a result, on 14 September 2016, the Commission issued their proposals for a copyright directive to reform existing European copyright law.

The key elements of these proposals are (i) a "neighbouring" right for the press; (ii) remuneration for authors’ creative content; and (iii) remuneration for online exploitation of rights holders’ content on video-sharing platforms.

It is hoped that the new proposals will ensure wider access to content online and across borders. This, along with better support for authors in reaching new audiences, should enable European copyright industries to flourish.

So what?

Whilst these new proposals give rights holders far more leverage when dealing and negotiating with large internet platforms such as YouTube, Google and Facebook, the suggested reforms look set to impact on these online services and others that store and provide access to copyright material uploaded by users.

Under current rules, online video platforms are not liable for content that has been uploaded without permission of the rights holder, but the platform must remove that content quickly once they have been notified of any infringement. If adopted, the Commission’s proposals may require these platforms to implement technology and run software checks to determine whether any content that they host is protected by copyright and authorised by the rights holder or required to be removed.

Another proposal is the right for news publishers to demand a fee from these platforms and news aggregators (such as Google News) where they show and link to snippets of the news publisher’s editorials. Also of concern is that the current drafting of this proposed provision could give rise to a claim for fees where news snippets are posted and shared on social media websites such as Twitter and Facebook.

Whilst the Commission hopes to close the gap in news publishers’ declining traditional revenue as the digital world becomes more prevalent, such a financial approach may well backfire if news aggregator sites are forced to pay fees to be able to aggregate articles and simply list headlines. Similar approaches have already been trialed in Germany and Spain – in these cases, mandatory fees led to a drop in online traffic to news websites and caused Google News to close its local service. If this were to carry through across Europe, the public’s ability to learn of global events could be impaired if they are prevented from accessing such a variety of content and, when they can, are restricted from sharing any such articles on social media.

It will be interesting to see whether this is a step too far in the Commission’s Digital Single Market strategy, given the impacts that could prove detrimental to both existing large businesses as well as the public. For businesses with an online presence, particularly in these areas, it is worth following the progress of these proposed changes as internal policies and working methods may need to be adapted in future should these proposals be implemented.