The EU Parliament has now voted in favour of an amended version of the Copyright Directive. The original draft directive had been rejected by the Parliament in July 2018, primarily due to criticism of two key provisions, known as the “link tax” (Article 11) and the “upload filter” (Article 13). Following substantial revision of these provisions, the Parliament has now accepted the draft directive, although the directive will be subject to a final vote in January 2019.
Article 13 of the original draft directive placed an obligation on online platforms such as YouTube and Facebook to monitor content uploaded to those platforms, and to block content that infringed copyright. In practice, the volume of content uploaded every day would require the use of some form of artificial intelligence. Following widespread criticism of this proposal, Article 13 has been amended and now places on obligation on online platforms to work with copyright owners to prevent users from uploading infringing content. However, in practice, this provision is still likely to require the use of artificial intelligence to scan uploaded content.
On the other hand, some of the other revisions to the draft directive do lessen the burden on online platforms.
The directive now restricts the type of online platform to which the upload filter applies. In particular, the upload filter only applies to an online platform where that platform optimises and promotes for profit-making purposes the storage and access to copyright protected content uploaded by its users. In turn, the upload filter does not apply to platforms that act in a non-commercial capacity such as online encyclopaedias, nor to on-line marketplaces whose main activity is the online retail of goods. The directive also provides that the upload filter will not apply to microenterprises or small-sized enterprises, on the basis that such enterprises are unlikely to be in a financial position to invest in expensive AI software to monitor uploaded content.
This amendment to the directive does seek to address the concerns raised by many of the critics of the original draft, although it is likely that the filter will still be found to apply to many medium-sized commercial enterprises who may not be able to meet the costs associated with fulfilling the burden imposed by Article 13.
The revised directive also makes express reference to allow for non-infringing content to remain available, and for effective and expeditious complaints and redress procedures to be put in place, such that users seeking to upload content have a means of objecting to the unjustified removal of any such content. Hence, if a user seeks to upload content that is rejected by an online platform on the grounds of copyright infringement, the user should be able to contest that rejection by arguing that the content would not infringe copyright, for instance by virtue of the parody defence. Again, this amendment does address the concerns raised in respect of the original draft, although it remains to be seen how effective the complaints and redress procedures put in place by any particular online platform will be.