Article 17 doesn’t really change the law. Copyright already exists in the material that is being targeted. It simply makes it easier for creators to assert their rights and ensures that online platforms will take their obligations seriously.
Existing exclusions like those for quotation and parody still apply, so popular elements of internet culture like comedy memes will not suddenly become illegal.
Small and start-up service providers are excluded from the more onerous obligations. Importantly, smaller services which are less than three years old will not have to deploy the industry best practice measures required of their more established competitors.
The Directive does not, as many have said, require the introduction of upload filters. It requires innovative solutions to be developed to prevent unremunerated content appearing, but it does not dictate how this should be achieved.
Against:
The obligations to seek licences, and block and disable content will be like shooting at a hazy and moving target. Not only is the required standard very subjective, but it is also meant to evolve over time.
The promised guidance is likely to reduce uncertainty, but it will not have the status of legislation. The courts would be able to take a different approach.
Tracking the evolving state of the art presents additional difficulties when blocking measures are based on proprietary technology. Smaller businesses are unlikely to have access to state of the art technology unless they pay the largest tech companies for the right to use it.
Although the Directive allows for permitted uses, falling within exceptions like quotation and parody, service providers will have to accurately sort all uses into the infringing and non-infringing categories. These exceptions do not have clear cut boundaries. It will be easier and less risky for businesses to take a cautious approach, blocking all material that could be infringing.
Start-up and smaller platforms are exempted from the most onerous obligations, but they will still have to negotiate licensing deals and promptly disable access to protected works.
Experimentation by internet users will be chilled, because platform blocking technology is likely to err on the side of caution and only permit activity that is known to be low-risk.
A new publisher’s right
Formerly known as Article 11, this rule has become Article 15 in the final text. It introduces a short-lived right for EU-based press publishers to control use of their material online. This is primarily aimed at news aggregators and media monitoring services, but is likely to catch search engines too. A two-year right to enforce copyright against “information society service providers” will be available. The term “information society service providers” is taken from another directive ((EU) 2015/1535). Essentially this captures electronic services that are provided remotely, and paid for by the user or through advertising.
Hyperlinks are in the clear, and single words or “very short extracts” are also allowed, but anything longer will be potentially an infringement of the publisher’s copyright. So those snippets of news that are listed in response to an online search will be under the control of the original publisher.
In favour:
A modern society needs and values a diverse range of sources of reliable information and news. Readers and viewers value having access to different points of view, styles and formats for obtaining information. Publishers of news continue to face falling hard copy circulation and are having to look for new business models in order to survive. Without better compensation of journalists and publishers sources will disappear.
Online services that provide a couple of sentences of material from a range of news publications in response to a search can give a user all of the information that they need without any need to visit the underlying publications. Whether publishers rely on advertising revenue, subscriptions or donations, reducing the numbers of visitors to their own sites has a seriously adverse impact on income.
Online services will still be able to provide hyperlinks and very short extracts enabling the user to find the information that they are looking for.
Against:
Online services will be able negotiate licences with publishers in order to show short extracts in the way that they currently do, but this will involve cost and complexity.
Online businesses will be able to cut down the amount of material they show to comply with the “very short” limitation. But this is a very vague limit. Does it mean two or three words? Five? Fifteen? Will it depend on the context, so that a longer article will merit a longer extract explaining what it is about? Eventually, court rulings are likely to be necessary to explain what “very short” means. This is likely to mean years of uncertainty and expense for both sides of the equation.
Businesses may decide to cut down on news sources to avoid having to obtain licences from them all. Google, for example, has said that material from smaller publishers will become less available, as online providers are likely to focus on the larger publishing houses and not bother with new or smaller ones. This will mean that the range of sources will be impoverished.
What about Brexit?
The Directive is due to be implemented by member states two years after it is finalised and published, so in mid-2021. Of course, it isn’t clear at the moment what the UK’s position in relation to EU legislation will be then. If the UK is still taking EU law on board it will have to implement these rules too, and it may choose to do so. The current UK Government has previously indicated that it supports the changes and plans to implement them – and it voted in favour of passing the legislation.
Even without UK implementation, the UK and other non-EU countries are likely to see changes. Technology companies may choose to adopt different policies and technology within and outside the EU, but we expect the changes to have an international impact.