POV: EU Copyright Directive

Background:

The European Parliament has adopted a new Copyright Directive. It is one of the most debated and lobbied proposals in the history of the EU due to two specific Articles - #11 and #13.

• Article 11 stipulates rules on ‘the neighbouring right’, i.e. when and how tech platforms pay for the right to use publishers’ work (being referred to commonly as the ‘link tax’).
• Article 13 stipulates rules on liability of tech platforms when hosting copyrighted material, and their obligations in handling such situations (being commonly referred to as the ‘upload filter’).

Details and Implications:

Article 11 suggests that under the final deal, companies such as Google and Apple will have to negotiate licensing agreements with rights-holders such as record companies and news companies, to publish their content on platforms like YouTube, Google News and Apple News.

Article 13 suggests that they may also face new obligations to monitor their sites for any copyright-infringing content and removing any that falls under those licensing deals. However, it is uncertain how these platforms are expected to identify content under copyright before it is uploaded.

Some uploaded material, such as memes or GIFs are specifically excluded from the directive and hyperlinks to news articles, accompanied by ‘individual words or very short extracts’, can be shared freely.

The Directive needs to be transposed into national legislation, which will give national regulators flexibility and a lot of say in the final implementation. The Directive still needs to be approved by the Council of the EU (Member States). It will enter into force, thereafter.

Key controversies:

Article 11 - Hyperlinks: The ‘neighbouring right’ is widely considered to give publishers more power in their negotiations with online publishers e.g. Google and Apple News. Opponents argue that such online platforms will simply remove publishers from these services; therefore, reducing access to information.

Article 13 - Upload filters vs freedom of speech: Civil society organisations argue that platforms will set upload filters which will prevent users from uploading memes, parody content or just a simple photo slide with a music background for fear of breaching copyright. As such they argue the Directive will hamper online freedom of speech. At the same time, Google has been arguing that this will hinder the creativity of YouTube communities. Currently, YouTube is not responsible for copyright violations, though it must remove content when directed to do so by the content’s rights holders (take down notices).

Summary:

Better protection of copyrighted material in online environments is in the interest of the advertising industry as it provides better protection of brands appearing next to such illegal content. However, there is some concern about brand licensed content getting caught in any system designed to spot illegally uploaded content. It will be two years before the Directive will be implemented at a national level, so there will need to be some serious innovation during that time to address these concerns.