The EU Directive on copyright in the Digital Single Market (the “Copyright Directive”) reached an important milestone on the 26th of March 2019 when it was approved by the European Parliament, by 348 votes to 274. The highly-debated Copyright Directive, which has been in the pipeline for over two years, has finally been given the green light meaning that the notorious articles 11 and 13 (now renumbered as articles 15 and 17, respectively) will eventually form part of the EU member states’ national legislation.
The salient features of the Copyright Directive, are:
• Liability rests on internet platforms for user-uploaded content; • Memes and GIFs are specifically excluded from the Copyright Directive; • “Individual words or very short extracts” accompanying hyperlinks to news articles can be shared freely; • Journalists are entitled to a share of any copyright-related revenue obtained by their news publisher; • Lighter obligations apply in relation to start-up platforms.
In Article 11, known as the “link tax”, press publishers have the right to charge search engines and other sites when reproducing more than ‘single words or very short extracts’ of their stories. This could mean that companies like Google News will stop displaying news results instead of paying to obtain a license (as happened in the past when Spain and Germany tried to implement similar provisions but failed). Therefore, this could limit access to news and even push small online newspapers out-of-business in the long run.
However, it was Article 13 that was at the centre of intense controversy and lobbying, particularly, in relation to “memes” and “upload filters”. For-profit platforms (such as YouTube, Facebook, and Twitter) must make their “best efforts” to obtain licenses to copyrighted material before it is uploaded online. Arguably, tech companies already remove user-generated content that infringes copyright, but their liability is set to increase under the new regime. It must be noted that the Copyright Directive does not impose “upload filters” per se, but neither does it specify the tools, human resources or infrastructure required to prevent copyrighted material from being uploaded online.
Although memes are now “specifically excluded” from the Copyright Directive and allowed “for purposes of quotation, criticism, review, caricature, parody and pastiche”, the fear is that upload filters will not distinguish between memes (or GIFS) and other copyrighted material (especially since the existing filtering technology is still not mature enough). Moreover, this provision could prove difficult to apply in practice given the large volume of material that is uploaded online on a daily-basis. In future, any filtering exercise should not be applied in a way that encourages a rigorous “safety first” culture at the expense of internet freedom.
In the coming weeks, the Council of the European Union will have to formally endorse the text adopted by the European Parliament. Once published in the Official Journal of the EU, the Member States will have two years to transpose the new copyright rules into national legislation. While the Copyright Directive is meant to ensure a degree of flexibility, there is still room for significant legal uncertainty in years to come. At this stage, what is certain is that the Copyright Directive will greatly impact the way the internet works within the EU and beyond. Therefore, it is important that all interested parties and stakeholders continue to work together to implement these reforms.