In mid-September, the European Parliament voted to adopt changes to the Directive on Copyright in the Digital Single Market (the Copyright Directive), sending the Twitterverse into a frenzy. Described by commentators as everything from 'welcome' to 'catastrophic', the changes are designed to ensure that creators of copyright earn a fair share of the revenue their work generates. Senior Associate Kaelah Ford discusses the key points of controversy in the Copyright Directive, and why the changes may raise more questions than answers.
Article 11 grants publishers the exclusive rights to authorise or prohibit:
- temporary or permanent reproduction of their publications; and
- making their publications available online,
so that they may obtain fair and proportionate remuneration for the digital use of their publications by information society service providers. 'Information society service' is defined as 'any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services'.
In a nutshell, the granting of these new rights would require online platforms, such as news aggregation sites, to pay publishers for the use of snippets of news articles. Critics have raised concerns that it is unclear how much of an article would have to be shared before remuneration had to be paid. In an (arguably unsuccessful) attempt to clarify the matter, a new paragraph was inserted, stating that a publisher's rights would not extend to 'mere hyperlinks which are accompanied by individual words'. Without knowing what is meant by 'individual words', it is arguable that under such a law, a hyperlink together with the first line of an article would attract a fee (leading critics to label it a 'link tax').
Article 13 provides that online content sharing service providers communicate a work to the public, and must therefore conclude fair and appropriate licensing agreements with rights holders. This essentially codifies an online service provider's primary liability for copyright infringement. The article also covers the liability for works uploaded by the users of such services.
If a rights holder does not want to enter into a licensing agreement, the content sharing service provider and the rights holder must cooperate in good faith, in order to ensure that unauthorised works or other subject matter are not available on their services. This is where the concept of an 'upload filter' comes in – it has been suggested that in order to ensure infringing content is not made available, platforms may have to introduce an automated filter at the upload stage. If deciding whether or not a piece of content is infringing vexes copyright lawyers and judges, it's difficult to see how making that assessment could be any easier for a bot.
In the face of millions of users sharing content at any given moment, ensuring infringing content is not made available is no mean feat for online platforms. Interestingly, the European Parliament has noted that 'small and micro platforms' will be exempt from the directive, in order to encourage start-ups and innovation – perhaps implicitly recognising the time and cost consequences of these changes.
Rights holders have welcomed the changes, as online platforms often reap the rewards of advertising via the sharing of copyright content, while the creators of that content receive little to no compensation, and are not in a strong position to negotiate royalties.
The EU member states will still need to sign off on the directive before the changes can be passed into local law. In the meantime, you can expect this debate to rage on.