The proposed Directive contains a new press publishers' right and imposes enhanced obligations on online content sharing service providers for copyright works uploaded to their services
The latest version of the Directive, which was adopted by the European Parliament on 12 September 2018, is now being considered by the Parliament, Council and Commission, before the final version is put to a vote in the European Parliament, which is likely to happen early next year.
ARTICLE 11 FILLING A VALUE GAP?
Article 11 of the Directive attempts to address the "difficulties that [press] publishers have in licensing the online use of their publications and recouping their investments". Unlike broadcasters or music producers, who have a distinct copyright in their broadcasts and recordings, press publishers do not currently have an equivalent copyright in their overall press publications. The Directive gives press publishers such a right (which lasts for five years) giving them greater control over the use of their publications by information society service providers ("ISSPs") such as search engines, news aggregators or social media platforms. The practical effect of this is to give press publishers greater
rights, and importantly extra leverage, in negotiating licencing arrangements with ISSPs to ensure they receive "fair and proportionate remuneration" for the use of their publications online.
GREATER CLARITY NEEDED
The latest version of the Directive contains a number of exceptions and limitations to the press publisher's right, the first being that the new right "shall not prevent legitimate private and non-commercial use of press publications by individual users." This is intended to ensure that the right does not apply to individuals who use press publications in their everyday, private use of the internet, e.g. sharing an article with friends on a personal social media account.
The second exception is for "mere hyperlinks which are accompanied by individual words". It is unclear how this exception will operate in practice, as no context or practical guidance is provided on it in the Directive. Equally unclear is how the term "individual words" affects the scope or application of the exception.
Earlier drafts of the Directive included an exception to the press publisher's right for "mere hyperlinking", so it is possible that this new formulation is intended to make the exception more workable in practice, as hyperlinks are likely to be accompanied by some descriptive text. However, the absence of clarification on this point will inevitably lead to litigation from stakeholders in order to test the precise scope of Article 11.
ARTICLE 13 INCREASED OBLIGATIONS FOR ONLINE CONTENT SHARING SERVICE PROVIDERS
Currently, ISSPs that allow users to upload material on their services are not liable for copyright infringement where the ISSP did not have actual knowledge of the copyright infringement, or if it did have actual knowledge, the ISSP acted expeditiously to remove access to the copyrighted material (i.e. notice and takedown).
HOW WILL THIS CHANGE UNDER ARTICLE 13?
The proposed Article 13 creates a new definition in EU law of "online content sharing service providers" ("OCSSPs"). The unwieldy definition of OCSSPs applies to "a provider of an information society service one of the main purposes of which is to store and give access to the public to a significant amount of copyright protected works or other protected subjectmatter uploaded by its users, which the service optimises and promotes for profit making purposes". Organisations which come within this definition (SMEs are excluded) will no longer operate under the current notice and takedown regime described above in so far as copyright infringement is concerned, but must instead adhere to the new, more onerous obligations imposed by Article 13.
Under Article 13, OCSSPs and right holders are obliged to conclude "fair and appropriate licensing agreements" that cover the liability for works uploaded by the OCSSP's users. In the absence of such licensing agreements, OCSSPs and right holders must "cooperate ... to ensure that unauthorised protected works or other subject matter are not available on their services". OCSSPs must also put in place "effective and expeditious" complaints and redress mechanisms for users who think their content has been unjustly removed.
HOW IT WORKS ARTICLE 13 IN PRACTICE
Given that OCSSPs cannot realistically conclude licensing agreements covering all copyrighted material uploaded to their services, they will likely have to employ some form of content screening (likely over and above what they do already) in order to ensure that unauthorised protected works are not made available on their services.
This task is made even more difficult as Article 13 goes on to require that OCSSPs must ensure that whatever methods of screening they use "shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright". In other words, there must not be "over-screening" of content. Given the practical burden of screening the vast amount of content uploaded to services (particularly social media and content sharing platforms) it is likely that technological, automated methods will have to be used, at least in the first instance. However, such technologies are unlikely to be advanced enough to make difficult decisions that require an understanding of culture, context, language and humour. Therefore, it is inevitable that human review will also be necessary to adhere to Article 13. The Directive therefore puts OCSSPs in a difficult position: screen, but don't screen too much.
Finally, it remains to be seen what degree of cooperation between OCSSPs and right holders is required, or who bears what degree of responsibility for noncompliance with the Directive, as the recitals state this will be up to Member States to clarify in published guidance.
The Directive has been politically contentious, and while some have declared it a coup for creative industries and the press, others have described it as "catastrophic" for the functioning of the Internet. Until certain key aspects of the Directive are clarified, it is also likely to be legally contentious, as press publishers, tech companies and right holders vie to consolidate their position under the new regime. The only impacts of the Directive that seem certain at this stage are that it will increase revenues for press publishers and heighten obligations and costs for online content sharing service providers. It remains to be seen however if the Directive will alter how users interact with and consume copyrighted content online.