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The new EU Copyright Directive
After more than two years of debates and negotiations, the European Parliament approved the new European Union Directive on Copyright in the Digital Single Market on March 26, 2019.
The key goals of new Copyright Directive is described as adapting EU copyright rules to the evolution of the digital technologies and the resulting business models.
However a deep look into it reveals that the legislation is still quite vague in terms of what actually needs to change and how it'll be upheld.
The new Directive would not apply to contents uploading for the purpose of caricature, parody or pastiche, including memes and GIFs and to the acts of hyperlinking and re-use of single words or very short extracts by online platforms and services.
Moreover, the contents uploaded on online encyclopaedias for non-commercial purposes (e.g. Wikipedia), and the open source software platforms (e.g. GitHub) do not fall within the scope of the new Directive.
The new Directive deals with critics being opposed to the controversial Articles 11 and 13.
The Article 11, known as the "link tax", would roll out a “neighbouring right” enabling news publishers to be compensated for use of their articles by online platforms. The aim is to encourage the conclusion of licensing agreements between Internet platforms and content creator. Nonetheless, the provision is still quite unclear on what exactly would have to be licensed.
The Article 13 introduces a responsibility upon the platforms with a turnover of more than Euro 10 million and more than 3 years of existence for the publishing of copyrighted contents by unauthorized subjects.
Precisely the article states that “if no authorization is granted (with the right holders) online content sharing service providers shall be liable for unauthorized acts of communication to the public of copyright and other subject matter, unless the services providers demonstrate that they have
made their best effort to obtain the authorization;
made in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the right holders have provided the service providers with the relevant and necessary information in any event;
acted expeditiously, upon receiving a sufficiently substantiated notice by the right holders, to remove from their websites or to disable access to the notified works and subject matters, and made best efforts to prevent their future uploads in accordance with the above".
Practically, it would force the subject platforms to police and prevent the uploading of copyrighted content, or make people seek the correct licenses to post that content, mostly by means of filters.
The main concerns raised during the discussion against the adoption of the so-called Article 13 are wide-ranging, including unease about the cost of compliance for smaller companies, and out-and-out censorship of the internet.
The text adopted by the European Parliament will be formally endorsed by the Council of the European Union in the coming weeks. Then, the Directive will have to be implemented into each national law within two years.
Marie Ferey
HFG Law&Intellectual Property
