The evolution of digital technologies has changed the possibilities and marketplaces for the distribution and access to copyright-protected content.
These rapid changes have given rise to new challenges that call for amendments to the current regulation.
By the end of March 2019 the European Parliament passed final approval of the EU-Directive on Copyright extending the existing European Union copyright law. Following approval, the EU Member States now have two years to implement the directive.
The key goals of the directive are to ensure the development of European creativity and production of creative content. In context of the directive, it is therefore, considered to be necessary to ensure that rightsholders receive a fair share of the valuegenerated by the use of their works and other creations.
In this newsletter, we highlight two of the most debated changes made in the new copyright directive.]
Article 15 of the directive, often referred to as the “snippet tax”-article, stipulates that copyright also protects excerpts of material, so-called “snippets”. This means that the use of excerpts (or snippets) of journalistic online content is contingent on a license to such from the publisher. The publisher may demand payment of remuneration for his/her license, referred to as the “snippet tax”. This right for publishers’ protection of press publications concerning digital uses will apply for 20 years after publication.
The right is specifically meant to provide news publishing companies and similar rightsholders of written copyright-protected material a tool for enforcing fair licensing arrangements in favor of the rightsholders, when negotiating with tech-platforms that automatically include headlines, pictures and excerpts from journalistic content into their platform. An example of such is the automatic link previews generated by social networks when their users share links on the social media.
While many claim that article 15 is founded on the principle that you have to obtain permission before using other people’s copyright protected material, opponents to the article claim that it makes it difficult and expensive to debate freely on the Internet while also limiting the freedom of speech and the freedom of information.
The concerns stem from the risk that companies might block content before it is uploaded, without undertaking an actual examination of the claimed infringement, because a thorough examination of every claimed infringement will be too costly for the companies, resulting in a risk of “over-complying” to be sure to stay on the safe side. As a consequence, rightsholders might unintendedly have their content blocked when trying to publish through the Internet.
Increased responsibility of online platforms with user content
Article 17 of the directive aims to ensure that online platforms that show user-generated content implement “effective and proportionate” measures to prevent users from violating copyrights so that users only share content to which they have the rights.
Within the scope of the provision falls in particular commercial online platforms, who’s main purpose is to provide its users with access to large amounts of protected content.
According to article 17, the platforms can be held responsible, if their users do not have the right to upload the given protected content on the platform. Consequently, these online platforms can no longer defend themselves with reference to that the protected content has been uploaded on their platform by individual users of the platform.
Without a permission from the given rightsholder, the platform will be responsible unless it is capable of documenting that they have (a) made best efforts to obtain authorization from the rightsholder, and (b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter, and – in any event – (c) acted expeditiously, upon receiving a substantiated notice from the rightsholder, to disable access to, or to remove from their platform the works in question, and made best efforts to prevent their future uploads in accordance with point (b).
It is worth noticing that article 17 does not include quotes, critics, caricatures, parodies and reviews as part of the extended protection. Furthermore, the directive has made exceptions regarding start- up companies as they will “only” have to prove that they have made an effort to obtain permission from the rightsholders and that they acted rapidly on any notices of infringement from rightsholders.
Obviously, the obligations imposed on the online platforms are the object of heavy debate. Critics state that the new article will obstruct innovation by requiring platforms to introduce costly copyright content filters or similar effective measures to their platforms.
In terms of the so-called “snippet tax”, the exact understanding of how much of a copyright protected work that can be posted by online platforms before they have to ask for permission from the publisher is unclear. Consequently, it will be imperative to find out how each Member State and future case law will define the limits of “snippets” and excerpts of copyright protected material. In this regard, it is worth noticing that the right to quote from articles still applies, which makes it possible under certain circumstances to quote without permission.
In relation to online platforms’ increased responsibility for user generated content, a key part giving rise to much uncertainty is the obligation for the platforms to implement “effective and proportionate” measures to prevent their users from violating copyrights. Although the directive does not as such impose a surveillance obligation on the part of the platforms, it is currently difficult to understand how the platforms can be free from responsibility without implementing a supervision control system based on a clever content recognition technology. Online platforms with user generated content are, thus, recommended to examine the different content recognition technology possibilities available on the market.
As mentioned, the copyright directive shall be implemented by the EU Member States before 15 April 2021. Accura closely follows the implementation process and further developments on this matter.