On 15 April European law-makers approved the EU’s highly controversial Digital Copyright Directive. Once the final text is published EU member states will have two years to implement the new requirements. Alongside some fairly unremarkable tweaks to the existing law, the Directive will bring in two much more radical changes. Lobbying to block the change has been intense, with an unlikely coalition of tech giants (like Google) and free internet activists among the most vocal opponents. The impact of the Directive on the internet and online business is likely to be substantial, with major changes expected in the treatment of user uploaded material, online news and internet memes.
Why the change, and why the objections?
European lawmakers believe that the way the internet currently works is deeply unfair, leaving creators like musicians, film-makers, performers, journalists and photographers out in the cold, while tech giants reap the rewards. In order to maintain the livelihoods and sustainability of content producers, they felt that a shift in the balance of power towards creators was needed.
Legislators believe that they have listened to objections and reached the right balance between protection and promotion of creativity and cultural diversity, and freedom of expression on the internet. It is true that the draft text has changed along the way. Where platforms make good faith efforts to identify and protect copyright works liability for uploaded content will not apply, for example. But opponents still believe that the impact will be harmful and have a chilling effect on many types of internet activity.
It’s worth noting that the draft Directive had different numbering to the final version: what was Article 11 is now Article 15, and Article 13 has become Article 17.
We’ll look at the two contentious areas and consider the arguments for and against.
In a separate article, we look at the effect of the Directive on the world of sport and gaming (Sports tech and the Digital Copyright Directive).
Controls on uploaded content
Most controversial is the new obligation on hosting services to clear copyright for user-uploaded content. Article 17 in the final version (formerly Article 13) aims to protect creatives from freeloading by tech companies. It makes it clear that the platform provider can be a copyright infringer where protected material is uploaded.
The new rule will affect “online content-sharing service providers” – we’ll refer to them as online platforms. As well as the major platforms like YouTube, Facebook and Twitter, this definition will include any profit-making service that provides public access to stores of material that could attract copyright protection. (Note that some types of service like online retail, B2B cloud and personal cloud storage are specifically excluded.)
Article 17 will require online platforms to obtain licences from copyright owners. If they cannot obtain licences, they must be able to demonstrate that they have made “best efforts” to obtain one, made professionally recognised “best efforts” to ensure that unlicensed works are unavailable and acted swiftly to take down unlicensed material. Relevant factors for these obligations include the size of the service, the evolving state of the art to block content and the cost of implementing such measures.
Recognising the difficulties inherent in making the new system work, Article 17 requires the EU Commission to organise dialogues and issue guidance on how it should be implemented. This kind of guidance will be valuable in promoting certainty, but it is worth bearing in mind that the courts would be free to deviate from the guidance and set a different standard of their own.
The way the internet currently works means that creators like photographers, musicians, performers and journalists are unable to make a decent return for their work. Once it is available online it is seen as “fair game” by both internet users and platforms.
Internet users and service providers alike need the effort, investment and creativity that goes into generating content in order to enjoy a rich and diverse online environment. The Directive will incentivise technology companies to strike fair licensing deals with content producers.