On 12 September 2018, the European Parliament approved a controversial package of new copyright laws. This was the second time MEPs had voted on the Directive on Copyright in the Single Market, known simply as the Copyright Directive.
It was first proposed by the European Commission in 2016, among clear political consensus and Jean Claude Junker had placed the harmonisation of the EU’s digital market at the centre of his 2014 presidential campaign.
But the debate over the shape of the laws quickly fostered intransigence and anger, leading to a strong defeat in Parliament earlier this year. That vote snagged on a couple of points, which you can read about in more depth in this IP Harbour article.
The first controversial point was Article 11 which introduces paid licenses for published content. This means where a website, such as Google News, links to another site, say IP Harbour, IP Harbour now have the right to ask to be paid. Critics say there is legal uncertainty around what content would be captured by this article.
The proposed Directive did not explain whether quotes or segments of video would require licenses and did not explicitly exclude content shared by individuals on social media. There was then a row over the economics. Currently, websites such as Google News make money from sharing articles without having to pay creators and publishers.
This led some to reduce Article 11 to a “link tax”. Smaller websites in particular fear being priced out of sharing content while the likes of Google and Facebook go onto easily absorb the licence rates. Writers, musicians and other creators argue that ‘links’ are not naturally occurring springs to feed into revenue streams but products of their labour.
The second snag was Article 13 which requires platforms like Facebook and YouTube to monitor the content uploaded by users and filter out anything that is copyright protected that does not have a (correct) license. This was lambasted by a group of seventy academics and business people, including Jimmy Wales, co-founder of Wikipedia, and Sir Tim Berners-Lee.
In a letter to the President of the European Parliament, Antonio Tajani, they said Article 13 “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”.
In light of these criticisms, the Commission and Parliament settled on the following amendments.
Article 11 now incorporates the red text, to be clearer about what content would be captured.
1. Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.
1a. The rights referred to in paragraph 1 shall not prevent legitimate private and non-commercial use of press publications by individual users.
2a. The rights referred to in paragraph 1 shall not extend to mere hyperlinks which are accompanied by individual words.
Paragraph 2a of Article 11 closely resembles the law in Germany, where individual words can be copied without having to pay for a licence, to give a flavour of any hyperlinked content.
However, the above amendments are far from legally certain. What is legitimate private and non-commercial use, if an individual has a large social media following? How many individual words can be copied before they become a phrase?
The Commission and Parliament also revised down the proposed twenty-year limit for each paid licence to five years and amended Article 13 to incorporate the following.
2a. Member States shall provide that where right holders do not wish to conclude licensing agreements, online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services. Cooperation between online content service providers and right holders shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright.
Critics remain concerned that memes and other parody material would be hoovered up by this law. Although the Directive provides for complaint mechanisms which include human review, not all EU countries exempt such material from copyright. This means some users may never see their memes again.
Instead of harmonising the EU’s digital economy, the Directive may end up exacerbating differences across member states which would lead to unfair outcomes.
Despite leaving both sides asking the same questions as before, the amendments were enough to swing the vote in completely the opposite direction to the July vote. MEPs voted to approve the new laws by 438 to 226. However, there will now be a trilogue between the Council, Parliament and Commission (as the EU’s three main legislative organs) before the Directive can be put to a final vote in spring 2019.
It is unclear how the Directive will progress, if at all, over this period. Trilogues take place behind closed doors and there will be little news coming out. In any case, the Directive has had an unpredictable journey so far.