Our last blog here was based on a leaked version of the proposed changes to copyright in the EU. The official press release from the European Commission has how been released and – as expected – the announcement has already produced some strong views and heated debate.

In general the proposals will not please everyone. However they can be viewed as a starting point to achieving a fair digital market and an optimum copyright system that balances fairly the rights and interests of all parties concerned. Inevitably though they will take considerable time to be finalised and passed into EU law.

We had commented in our last blog on 2 of the main proposals being to introduce a new ‘neighbouring right’ and the obligation being placed on online platforms providing user generated content (“UGC”) to monitor and proactively report unlicensed/ infringing content. These proposals were intended to fill the so called ‘value gap’.

The new and official version of the draft proposal at recital 38 and 39 and Article 13 suggests the approach preferred will place still more onerous obligations on digital content providers such as (Google, YouTube etc).

These new proposals will require digital content providers, if they give access to large amounts (It is not immediately clear as to what this may mean? Is it meant to apply only to the larger UGC platforms who may by definition have more materials uploaded to them? In any event there are no parameters included) of copyright protected work to take measures to protect these by use of technology (presumably by filtering to check if content is copyright infringing) even when they are eligible for the hosting liability exception under Article 14 of Directive 2000/31/EC of the European Parliament. Also they must provide the rightholders with adequate information on how those measures have been working/ functioning, as well as, when relevant, adequate reporting on the recognition and use of the works concerned.

Also in contrast Article 15 of that existing Directive 2000/31/EC provides that there is no general obligation on ISPs to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. This seems inconsistent or contradictory to this new revised proposal. Whilst Youtube already has its content ID technology which assists it to identify infringing content, it was expensive to develop and no doubt is expensive to maintain and keep up to date to deal with attempts to get around it. Less well-resourced or potential new entrants to this sector may be inhibited or even prevented from participating as a result of such new requirements.

In addition the new ‘neighbouring right’ for publishers of news content will apply to ‘press publications’ as opposed to ‘news publications’ the words used in the original leaked draft. It maybe that the new wording is intended as a broader definition.

In any event these proposals are bound to create controversy and strong views are already being canvassed by parties with interests on respective sides of debate – the rights holders as the publishers will generally be in favour and the news aggregators/ search engines such as Google news will be against these as being costly to them. Indeed there are some suggestions that it will not be welcomed by all publishers either as the smaller ones benefit or even rely on the news aggregators/ Google as their publishing of news snippets and links drives traffic to their sites and content which they would not otherwise receive. If therefore the likes of Google news simply decide it is too costly for them to pay licence fees to publish the news material they may choose to stop doing it in the EU, which will of course not necessarily be good for those smaller publishers or the general public.

The final outcome will clearly be important and will affect the developing role of the likes of the YouTube and search engines such as Google – can they remain mere hosts or will they be forced to become the effective police of the internet? Interestingly, Facebook recently lost out on an attempt to strike out an Irish court case against it for damages for misuse of private information, negligence and breach of the Data Protection Act for failure to block re-publication of a compromising photograph of a young girl by using a tracking process to identify the image. The offending photograph was said to have been posted on a so-called shame page on Facebook several times between November 2014 and January 2016. Whilst not dependent on copyright infringement this decision effectively rejected the defence ‘we did not know’ in circumstances where it is feasible to implement techniques to trace infringing / offensive material on the web. The irony may be that the more ISPs and internet platforms are required to and do monitor and track uploaded content the more they will be potential liable as effectively being regarded as publishers.

Useful links to the Commissions communication and to the various draft Directives and Regulations:

https://ec.europa.eu/digital-single-market/en/news/promoting-fair-efficient-and-competitive-european-copyright-based-economy-digital-single-market

https://ec.europa.eu/digital-single-market/en/news/proposal-regulation-laying-down-rules-exercise-copyright-and-related-rights-applicable-certain

https://ec.europa.eu/digital-single-market/en/news/proposal-directive-european-parliament-and-council-copyright-digital-single-market

https://ec.europa.eu/digital-single-market/en/news/proposed-regulation-cross-border-exchange-between-union-and-third-countries-accessible-format

https://ec.europa.eu/digital-single-market/en/news/proposal-directive-permitted-uses-works-and-other-subject-matter-protected-copyright-and