On 20 February 2019, we reported on the then current status of the “Directive on copyright in the Digital Single Market” (the Directive). Unlike the progress of the Directive up until now, matters have progressed quickly in the last couple of weeks.
Wording of the Directive
The agreed wording of the Directive, which was approved by the European Council on 20 February, has now been published and can be found here.
A few points to note on the final wording of the controversial articles 11 and 13:
Article 11 – requires EU Member States to put in place provisions which ensure that authors of content used on news aggregator sites receive “an appropriate share of the revenues… “obtained by such sites from using the content. Unfortunately, how one calculates what an “appropriate share” is remains unclear.
Article 13 – the final wording confirms that websites which host user-generated content need authorisation, such as a licence agreement, from copyright holders before they make copyrighted content publically available and encourages “cooperation between online content service providers and rightsholder” so as not to prevent non-infringing material being uploaded by users.
Paragraph 7 also makes it clear that no “general monitoring obligation” is placed on platforms, although under paragraph 4 they must use “best efforts” to obtain authorisation from rights holders and remove any infringing material “expeditiously” following notification.
This text is still subject to much criticism as the efforts which platforms are required to go to, both to obtain such authorisation and remove infringing content, is considered unclear.
The next vote
Notwithstanding opponents’ vocal concerns, members of the European Parliament’s Committee on Legal Affairs (JURI) voted in favour of the wording of the Directive on 26 February 2019, as approved by the trilogue negotiators.
Next, the Directive will be put to the European Parliament and voted on by MEPs. As anticipated, this vote is likely to take place either at the end of March or in April.
Even though the wording of the Directive has in theory been agreed, it is not safe just yet. The oppositions to the Directive, and in particular the controversial Articles 11 and 13, continue with vengeance. Demonstrations are taking place across the EU, a march took place in Cologne on 23 February, and online petitions and crowd funding pages have been set up to help support groups campaigning against the Directive. Some sources even say that 23 MEPs are planning on voting against the Directive.
The MEP vote is likely to take place after the UK is due to exit the EU, on 29 March 2019 (subject to any Brexit delay). If this is the case, as previously discussed, the Directive will not apply to the UK.