An effort to modernise harmonised copyright laws across EU Member States was voted down earlier this month following controversial plans to impose greater obligations on website owners.

The proposed Copyright Directive included two provisions that would see websites responsible for checking copyright infringements and ownership under Article 13, as well as compel sites to pay for links to news articles, under Article 11.

Whilst creative forces have supported the reform, collecting society PRS leading one of many charges in their Creators’ Rights Fight pagewebsite owners, particularly social media platforms, have ben less impressed, arguing the provisions would stifle creativity, prevent the creation of remixes, and even make memes illegal.

Article 11

Article 11 aimed to impose more stringent conditions on online platforms when linking to news stories. The provision would have required websites such as Google News and Facebook to pay a licence fee when referring to an article or news story. These entities currently make money from sharing these articles but do not pay any fees to the publishers.

The controversy surrounding Article 11 centred around a lack of certainty, as it was unclear exactly what would require a licence- merely a quote within the article, a link to the article or both? This uncertainty meant that it would be difficult to understand Article 11’s impact and how online providers would need to prepare and adjust.

The cost of a licence within the online market may have also priced out smaller websites. Google and Facebook would likely be able to not only negotiate and help set the licensing rate but also absorb the cost, unlike younger or smaller outfits, and ultimately reduce consumer choice.

Article 13

Article 13 had also proved controversial, as it aimed to regulate the “the use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users”.

This would have required online platforms to ultimately police and prevent their users from uploading copyright protected content like images, music and films. Facebook, Twitter and Instagram would therefore have had to filter content before it was uploaded to ensure that it did not infringe copyright.

Such entities argued that any user generated content would therefore be subject to their review and restrict what content can be viewed. This would have resulted in the disruption of the user experience, and would stifle the creativity, as users would no longer be able to choose the content they want to upload.

Creative industries had fought back, aiming to address the value gap- a term coined to empower creatives to exploit their works online. Paul McCartney, Annie Lennox and David Guetta, had voiced their support for the provision, arguing that websites had capitalised on their content in the past, with little to no remuneration being passed on to them.

One popular argument used by the opposition was that memes would no longer be legal, as every image or video would require the permission of the rights holder, although PRS nicely surmised that parodies and pastiche are exceptions to copyright infringements.

More than seventy individuals from the technology industry, including Jimmy Wales, co-founder of Wikipedia, and Tim Berners Lee, had signed a letter to the President of the European Parliament, Antonio Tajani, condemning Article 13, suggesting that the Article “takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users”.

Looking Forward

The vote ended in a rejection of the proposed Directive due to the need for further debate.

Whilst site owners are celebrating, each side will now double their campaign efforts to ensure they are heard at the next vote.

Those looking to find a balanced solution have suggested that any blanket tool to remunerate all works online may be unworkable, and have promoted better licensing deals between the websites and creatives, to ensure parties are paid in a fairer and more transparent way.

On Wednesday 12 September 2018, members of the European Parliament will vote on the Directive.