The controversy around Europe's new copyright directive has been high profile and intense. On one side are authors, musicians and writers, and those that publish and monetise their work. (It is not often that Sir Paul McCartney writes an open letter to MEPs on a piece of planned legislation.) On the other side of the argument is the free internet lobby, both large tech and individual internet users. Google has explained its perspective in similarly strong terms.
This week negotiators from the EU institutions reached agreement on the text. While it still needs final approval from the EU Council and Parliament, it looks likely that this version will reach the statute book.
Why are these planned changes causing such tension?
The Directive will make many changes to EU copyright law. Most of them are not particularly controversial. But there are two which have been a problem from the start.
Article 11 – the “link tax” or “snippet tax”
Not really a tax at all, this will introduce an additional form of copyright protection for press publishers. The new right would control the use online of snippets of new stories, like those used by Google to help readers find content they are interested in. Hyperlinking would not be affected, but the new right will mean that use of more than individual words or “very short” extracts will require a licence. Working out exactly what “very short” means will be a task for the courts, and, of course, that will involve costly litigation.
Google says that the requirement to put licensing arrangements in place would mean that smaller publishers are pushed out of the picture:
“The European Parliament's proposed version of the legislation would require search services to put licenses in place that may force them to start choosing which content to include and which to exclude.
This would likely benefit larger publishers and restrict the flow of traffic to smaller ones, making it harder for small, niche or new publications to find an audience and generate an income.
As a result of this, the range of publishers available online could become much more limited.”
The text has been changing substantially as it moves between the institutions. The proposed 20 year duration of the right seems now to have been cut back to two years following the year of publication – unofficial agreed text here.
Article 13 – the “upload filter”
Even more controversial, Article 13 will put new responsibilities on content sharing platforms to prevent copyright infringement. In future, a profit-making "online content sharing service provider" will itself be infringing copyright by giving access to copyright protected works uploaded by users. Providers of these services (YouTube etc) will be in the wrong simply by hosting unlicensed copyright material, unless they can demonstrate that they have made best efforts to obtain a licence, and to block and remove the unlicensed material.
The unofficial text of Article 13 includes a carve-out for new, smaller providers.
Google says that the impact on the internet will be huge:
“Services could have no choice but to block existing and newly uploaded videos in the European Union with unknown or disputed copyright information, in order to avoid legal liability.”
Highlighting the much-loved “Despacito” music video (currently approaching 6 billion views on YouTube), Google points out that videos like this include several different copyright-protected elements. The uncertainty around identifying and compensating all of them means that videos will have to be taken down to avoid liability.
The European Parliament says that upload filters will not necessarily be the result:
“The draft directive however does not specify or list what tools, human resources or infrastructure may be needed to prevent unremunerated material appearing on the site. There is therefore no requirement for upload filters.
However, if large platforms do not come up with any innovative solutions, they may end up opting for filters. Such filters are indeed already used by the big companies! The criticism that these sometimes filter out legitimate content may at times be valid. But it should be directed towards the platforms designing and implementing them, not to the legislator who is setting out a goal to be achieved - a company must pay for material it uses to make a profit. A goal which, in the real world, is uncontested and enforced.”
The new law will not take effect until after 29 March. Whether it applies to the UK will depend on the Brexit process. But even if it does not form a part of UK law, the impact will inevitably be cross-border. Like GDPR, this is a piece of EU legislation that looks likely to affect businesses and internet users around the world.