The proposed “directive of the European Parliament and of the Council on copyright in the Digital Single Market” is one of the more controversial proposals for legislation to go through the EU’s legislature. It has been one hard-fought by businesses and individuals on both sides of the debate, pitching famous musicians and media companies against the largest and most powerful tech companies. But what is it all about?

The focus of the debate has been on two articles, Article 11 and Article 13. These articles have been described by their opponents as, respectively, the “link tax” and the “upload filter”. We will not adopt these terms as they are deliberately pejorative, and fairly unhelpful. However, they do show the basis on which many of the draft directive’s detractors base their opposition. Let’s look at the two articles in turn.

Article 11

The originally proposed text required EU member states to give print and digital newspapers and magazines the right to control the digital use of their publications through the “reproduction” and the “making available” rights available under EU copyright law for 20 years from publication. This would give press publishers much more control over the use of their articles online. The objective of the reform was to try to protect press publishers from decreasing advertising revenue by creating a new revenue stream from use of their content on internet platforms such as Google News. Publishers complained that platforms such as Google News allowed users to get the gist of the article without then proceeding through to the publisher’s website (where it sells advertising), thereby depriving the publisher of its advertising revenue.

This proposed reform caused great concern for providers of such news services, most of which aggregate and organise various press publications from various publishers. Perhaps unsurprisingly given the hostile atmosphere in Brussels towards largely US-based tech companies, the EU Parliament has pushed ahead with the reform. However, the text approved by the Parliament contains some limited caveats, including that:

  • the remuneration must be “fair and proportionate” (although what that means in practice is unclear)
  • individual users using publications for “legitimate private and non-commercial use” are protected
  • “hyperlinks which are accompanied by individual words” are permitted
  • the right only lasts for five years, and
  • the journalists themselves receive an “appropriate share” of additional revenues.

While the final text is subject to further debate and negotiation with the EU Council, the reform is potentially a needed fillip to the publishing industry, which the Commission considers to be under existential threat. What effect the Directive has will depend very much on how it is implemented and interpreted. However, it seems likely that it will force companies such as Google to weigh up the benefit to it of providing the affected services against the cost of paying the press publishers. In late 2014, in the face of a similar Spanish law, Google simply shut down its Google News service in Spain. It seems likely that Google could do the same again across the EU. It looks like a showdown may be on its way.

Article 13

The text originally proposed by the Commission provided that member states would be required to ensure that “information society service providers” (which includes YouTube, Facebook and Instagram) would be required to “prevent the availability on their services of works or other subject-matter identified by rightholders”, including through the use of “effective content recognition technologies”. Many readers will be aware of YouTube’s ContentID, which is an automated system that can help detect infringing materials uploaded to YouTube; this is the kind of “content recognition technology” the Commission has in mind.

This was swiftly described as an “upload filter”, ie that platforms would need to filter all content being uploaded to their platforms and cross-check it against a database of protected works. Aside from the technical challenges involved in this, the effect on these platforms could be significant, eg delays, wrongful classification of materials as infringing, etc. For example, there have been multiple stories of copyright claims being made as a result of ContentID, including in relation to white noise and birdsong, which suggests that technology is perhaps not the silver bullet the Commission thinks it is. The cost of employing humans to resolve the disputes is something platforms would resent having to bear.

The text adopted by the parliament has been tempered significantly. Rather than putting the onus on platforms to prevent infringing works being uploaded, the draft directive now states that platforms and right holders “shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services”. Again, what this means in practice will depend on the way in which it is implemented, which could potentially be different in every member state.

In order to address some of the concerns that Article 13 will impinge on free speech (by, for example, supressing the lawful use of copyright for criticism, review, parody and pastiche), the draft text states that:

  • the cooperation between the platforms and the right holders “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”,
  • the burden on SMEs remains appropriate,
  • automated blocking of content is avoided, and
  • member states ensure that the platforms put in place “effective and expeditious complaints and redress mechanisms” to deal with disputes over whether content should have been blocked (for which they will have to pay).

Conclusions

There has been a great deal of hyperbole from critics of the new directive. However, the parliament’s passing of the draft directive is highly significant. It will now followed by another few months of intense lobbying and negotiation within the EU (during the somewhat murky, so-called “Trilogue” between the Commission, the Council and the Parliament) and an implementation period of at least a year. We will await the reaction of the tech Titans that are the target of so much of its content.

Postscript on Brexit: Given the timings, and absent a British ‘about-turn’ on the UK’s departure from the single market, it is likely that the UK will not implement this Directive. Given the UK’s general support of free speech, and adversity towards anything that could be considered ‘anti-business’, it seems unlikely that the UK would choose to enact similar rules on its own. This could be an early example of the UK asserting its newfound sovereignty and diverging from the EU’s ‘acquis’.