The European Parliament has ended a two-year legislative process by adopting the Directive on copyright in the Digital Single Market. The Directive attempts to ensure that rights and obligations of copyright law become applicable to the internet whilst protecting freedom of expression. The next step is for the approved text to be endorsed by the Council of the European Union in the coming weeks. Following publication in the Official Journal of the EU, the Directive and will need to be transposed into Member State law within two years.
The Directive’s most talked-about provisions are known as the ‘link tax’ and the ‘upload filter’. Article 11, commonly known as the ‘link tax’ clause, requires web platforms to obtain a license in order to be able to link or quote news articles. Thus, publishers will be allowed to charge the web platforms such as Google News and get a portion of the revenue generated by such web platforms. An exemption is included for legitimate private and non-commercial use of press publications by individual users. However, uncertainty arises as to the interpretation of this exemption given that you can have a private individual with a huge reach on social media and it is unclear whether such a person would fall within the interpretation of the exemption.
Article 13 imposes an obligation on web platforms to obtain licenses for copyrighted material before such material is uploaded onto their servers. Platforms will, under the new Directive, be held responsible for any material posted without a copyright permission. This is commonly referred to as the ‘upload filter’ as platforms will need to filter all uploads to prevent users from posting anything which could potentially violate copyright. While exemptions for quotations, criticism, reviews, parodies or pastiche amongst others are included in the new Directive, this clause represents a shift from the current position, under which platforms are simply obliged to respond to requests for removal of unlawfully uploaded copyrighted material.
This clause has proven controversial: critics have argued that the clause will quash free speech on the internet and put an end to user-generated content. Moreover, the cost of filtering uploads as required by the Directive, could, critics say, pave the way for tech giants like Google and Facebook to tighten their grasp on the market, while ousting smaller players that cannot afford to monitor uploads as required.
Supporters of the Directive have said that it will give content creators rights and will balance the playing field between the content creators and tech companies. Meanwhile, several high profile companies and individuals have campaigned against it, stating the legislation is too vague and will end up restricting how content is shared online. Google has said it would “harm Europe’s creative and digital industries” and will repress freedom of speech.
The resulting effects of the Directive will start being seen once Member States start to interpret the Directive in order to be able to implement it into their national legislation.