The EU Copyright Directive – still more questions than answers

Industrials Intellectual Property Patents & Trade Marks

In brief

Last October, we reported on the European Parliament's vote to adopt changes to the Directive on Copyright in the Digital Single Market. The final form of the Directive was approved in March, and on 15 April, the Council of the European Union gave the Directive the green light. This means Member States will soon begin the process of adopting the controversial legislation into local law. Senior Associate Kaelah Ford and Lawyer Amelia van der Rijt report.

How short is 'very short'?

Article 11 (now Article 15) gives press publishers the right to obtain fair and proportionate remuneration for the online use of their press publications. The original version of the article, known as the 'link tax', had raised concerns it could require online aggregators to pay licence fees for hyperlinks or short snippets of news articles shown on their sites. The final version excludes from the press publisher's right both hyperlinks and 'very short extracts' of publications. While it remains to be seen just how short 'very short' is, the article no longer resembles a link tax.

Amendments have also clarified that press publishers will only have this right for two years from the date of publication (as opposed to the 20 year term initially proposed), and the rights conferred will only apply to works published after the Directive enters into force (more on this below).

A near miss for the controversial 'upload filter'

The most controversial provision of the Directive, Article 13 (now Article 17), almost got the axe, with a last minute proposal to remove it rejected by just 5 votes. Coined the 'upload filter', Article 17 makes online service providers directly liable for infringing content uploaded by their users.

The original version of the article obliged online providers to enter into 'fair and appropriate licensing arrangements' with rightsholders. This has been amended to an obligation to:

  • obtain appropriate authorisations from rightsholders or make best efforts to obtain authorisation; and
  • failing that, make best efforts in accordance with 'high industry standards of professional diligence' to ensure works of which they are notified by rightsholders are not made available.

Online providers will also be obliged to operate an 'expeditious notice-and-take-down procedure'. Notably, there is limited liability for start-ups which have been operating for less than three years and have an annual turnover of less than 10 million euros – this is tacit acknowledgement of the burden imposed by compliance and is designed to ensure European start-ups can compete with established providers.

Notwithstanding the revisions to this article, we are still left with uncertainty. What does 'best efforts' mean? How do you measure 'high industry standards of professional diligence'?

Meme ban? Ain't nobody got time for that

In welcome news for meme fans, the revised version of the Directive makes clear that users will be free to upload and make available memes and gifs under exceptions for quotation, criticism, review, caricature, parody or pastiche. Online providers must inform users of their rights to rely on these exceptions in their terms and conditions. The question remains whether online providers will err on the side of moderating this type of content to avoid liability, particularly given the uncertainty surrounding the scope of parody and similar exceptions to copyright infringement.

Certainty is still years away

The Directive will enter into force 20 days after publication in the official journal of the EU, and Member States will then have two years to implement the Directive into local law. Accordingly, new laws are unlikely to come into effect until May 2021. EU Member States have a degree of flexibility when it comes to implementing directives into local law, and each Member State will need to determine how the Directive ought to be interpreted and applied. The debate is far from over.