The European Parliament has today - in its plenary - voted to approve the revised Copyright Directive following a debate with 438 MEPs voting in favour of the latest proposal, 226 against, while 39 abstained.
The Copyright Directive is part of a wider reform by the EU Commission of the copyright for the internet age within its plans to create a digital single market. Its path to today's parliamentary approval has been far from smooth: the European Parliament had initially in a first vote of 5 July 2018 rejected an earlier draft of the Copyright Directive, after the EU Parliament's (JURI) Committee on Legal Affairs had narrowly approved it earlier in the year.
Two controversial provisions: Article 11 & Article 13
While the final version of the Copyright Directive as voted upon today is not yet publicly available, it appears that the MEP's have voted on and approved the most recent version provided by the rapporteur, German MEP Axel Voss. Most notably, the Copyright Directive includes two highly controversial provisions, Articles 11 and 13, which have been the subject of much debate and campaigning:
Article 11 (approved by 393 with 279 votes against) introduces a type of additional copyright for press publishers, separate from the copyright in individual articles. Article 11 has also been referred to as "link tax", “news tax”, publishers’ or neighbouring right, along the lines of similar laws previously introduced in Spain and Germany. Under the new Article 11 displaying even very short “snippets" of content to users via online platforms and other news aggregators must be licensed. The underlying rationale of the Article 11 is to generate income for (European) press publishers in attempt to address a so-called "value gap". Campaigners against the introduction of Article 11 argued it would limit freedom of expression and access to information.
Article 13 (approved by 366 with 297 votes against) states that certain service providers are engaged in an act of communication to the public in respect of user generated content (UGC). It results in an effective obligation for those platforms to monitor UGC contrary to Article 15 of the E-Commerce Directive. Critics fear that Article 13 will require the use of upload filters and could lead to an over-blocking of legitimate content. As has been widely reported in the media, this could also affect the sharing of satirical content and memes where these are based on copyright protected images and so impact freedom of expression. While Article 13 requires "appropriate and proportionate” measures to prevent copyright infringement, Mr Voss has been cited as arguing that Article 13 did not require upload filters as a means of compliance. However, it is hard to avoid the conclusion that the Directive does materially change the current law safe harbour laws in Europe despite the Commission’s position that this was not the intention of the originally proposed Article 13.
With the draft Copyright Directive now having been approved by the European Parliament, the "Voss" proposal will progress to three-way negotiations among the Council of the EU (which represents the individual EU member states), the EU Parliament and the European Commission. It is therefore possible that the Copyright Directive may still be amended during the course of these negotiations.