You could hardly miss it a few months ago: the free internet would be in danger because of the new Copyright Directive of the European Union. We already reported a while ago about this directive. The Directive was published in the Official Journal on 17 May 2019. Reason enough to delve deeper into the possible consequences of this Directive: will the internet really be censored soon?

Why a new European Copyright Directive?

The new Directive fits into the "Digital Single Market Strategy" vision text of the European Commission. The directive aims to eliminate national differences in copyright law and to make works available to EU citizens more widely. Certain organizations that pursue a public interest collide with copyright restrictions.

The focus is on three specific objectives: access to work in the context of education (eg illustrations for cross-border education), use and analysis in the context of scientific research (eg copying of works for text and data mining) and preserving cultural heritage (eg avoidance of works being destroyed). In carrying out these activities, the organizations involved must act in the twilight zone or be fully restricted in their activities.

At the same time, authors experience many difficulties in the smooth exploitation of their works and in obtaining a fair compensation for their online exploitation. A new Directive should also provide additional support in this area.

What does the Directive entail?

The Directive introduces three important, new exceptions to copyright. Within the limits of these exceptions, users can copy the copyrighted work and / or communicate it to the public without the prior permission of the author or copyright owner:

1. Researchers may make reproductions or extractions of protected works in the context of their scientific research and the necessary text or data mining. Text mining or data mining is an automated analysis of large amounts of text or data that can usually be protected by either copyright or database rights.

2. Educational institutions receive a more extensive exception for the use of works as an illustration for their educational activities. EU Member States are, however, offered the option of providing for fair compensation.

3. Heritage organizations receive an exception for making copies of works that are in their collections. A possibility is provided to make out-of-commerce works available on a non-commercial basis. This requires a license with management associations, which also act for unrepresented rightholders for the management of the fair fees. Such a license will then be valid for the entire European Single Market.

The "Netflix" clause provides support to rightholders in the exploitation of their audiovisual work on video-on-demand platforms.

In addition, there must be adequate transparency vis-à-vis rightholders regarding the exploitation of their works. A possibility of renegotiating the license terms is also provided.

Protection of press articles or linking tax?

The Directive has caused quite a stir on the internet and in the media. The reason for this lies mainly in two provisions regarding protection for press articles and a liability arrangement for republishing by platforms.

In Article 15 of the Directive, protection is granted to publishers of press articles. The protection is valid for twenty years. It is actually about a new sui generis right. The protection does not prevent the copyrights of the authors and journalists themselves. They must also receive appropriate compensation. But the protection of press articles makes it possible for editors to negotiate a fee for the republishing of their press articles by search engines, social media and other online platforms.

A linking tax was feared, with permission having to be obtained (and compensation paid) for every link that is placed online to press articles. However, hyperlinking is explicitly confirmed as a legitimate internet practice and therefore remains possible.

The exclusive rights do not apply to scientific articles and cannot be invoked with regard to private individuals or non-commercial use, which means that no so-called "chilling effect" can arise in that area. And the already known "short fragments" exception is also valid here.

A modified, short life span of the new intellectual property right was also chosen. The protection of press articles is only valid for two years, starting from January 1 of the year following the year of publication.

Upload filter?

As mentioned, the Directive has caused a great deal of protest among free internet activists. In addition to the fear of the linking tax, there is also the fear of the "upload filter" for online platforms.

Since the "Web2.0" developments we have seen the emergence of online platforms that offer the possibility to publish "user generated content". In addition to the ability for users to upload self-made music, photos and videos, a great deal of content has been posted online to which third parties have copyright or other rights. The online platform only operated as a (purely technical) intermediary.

The eCommerce Directive 2000/31 / EC - the transposition into Belgian law of which can now be found in art. XII.17-20 WER - provides a possibility for technical intermediaries to limit their liability for infringing content present on their online platform, provided they have no knowledge of the presence of that content. On the other hand, they must provide for appropriate "notice and take down" procedures if notification is made.

The provisions of Article 17 of the Directive now introduce an exception for content platforms where the provision of content is considered as a notice to the public, in the sense of copyright. If protected content is placed online, the platform must have obtained permission for this from the author or person entitled.

The providers of the online platforms can be held liable for a copyright infringement if they cannot prove that they have made every effort to:

  1. to get permission from the author / person entitled; and
  2. to ensure that the works for which the author / entitled person has provided them with the necessary information are not available; and
  3. promptly acted after notification of infringements to deactivate or remove access to the works, and to prevent future uploads

Copyright management companies are undoubtedly playing an important role in obtaining permission for public communication from the authors and right holders.

The obligation is only imposed on "providers of online content sharing services" whose main objective is to allow (for profit) users to place large amounts of creations online and make them available. The limited liability of the eCommerce Directive no longer applies to them.

Pros and cons

The new obligation must meet an old complaint from (European) authors and artists who are in a weak position in the online exploitation of their works. The speed and ease with which copyrighted work can be copied and streamed has, after all, ensured a wide gray and black zone of consumption of those creations.

The criticism of this measure comes mainly from two quarters. On the one hand, online platforms such as YouTube, Instagram and Facebook represent potential liabilities. And despite the fact that the provision does not "general monitoring obligation" would create, the measure will in fact be tantamount to a need to introduce control over what is put online and is thus considered published by the online platform itself to become. The platforms concerned therefore represent substantial investments.

On the other hand, there is a fear that a conservative, protective overreaction of online platforms that fear liability and for that reason might adjust the filter parameters too strictly. This could ensure that legitimate publications would also be banned and would amount to a form of (self) censorship. The "free internet" community shudders for that, but also champions of fundamental rights such as freedom of expression.

There is also fear of secondary effects on users themselves. Because it is not inconceivable that they will also feel impeded in their free speech from a fear of being sanctioned by the online platform involved.

Article 17 also stipulates that the known exceptions to copyright (quotation, criticism, review, caricature, parody or pastiche) must remain fully applicable. A look at the case law of recent years, however, shows that the assessment and application of these exceptions always turns out to be a delicate balancing act. The question is how this will be embedded in the different processes of the online platforms.

Finally, the Directive provides for a consultation structure for the sector and the European Commission to work on a set of best practices to implement the provision of Article 17. Particular attention should be paid to the fundamental rights and freedoms as be safeguarded in the European Union.

Entry into force

The Directive will enter into force on 7 June 2019. The new Copyright Directive must be transposed into national law in all EU Member States. Member States are given two years to do so, until 7 June 2021. To the extent that the Directive would not have been transposed in a given Member State by the deadline, it will be directly applicable in the relevant legal system.

The transposition into national law is likely to lead to differences in legislation between the different EU Member States. National copyright management companies are also more than likely to remain nationally competent to negotiate licensing agreements with the online platforms.