Article 13 has been rewritten and now states that a service provider ‘performs an act of communication to the public or an act of making available to the public’ when it gives the public access to copyright protected works uploaded by its users.
Have European Union legislators finally agreed on the substance of a new Copyright Directive? That was the claim made in a statement by the European Commission on February 13. The Commission announced that it, the EU Council (which represents member state governments) and the European Parliament (comprising 751 elected members) had reached a “breakthrough” on controversial proposals that have been hotly debated for the past six years.
The Commission explained that the three bodies had found a “political agreement to make the copyright rules fit for [the] digital era in Europe and bring tangible benefits to all creative sectors, the press, researchers, educators, cultural heritage institutions, and citizens”. However, it did not publish the text that had been agreed (the previous draft of the Directive is available here).
The Text Revealed
Step forward Julia Reda MEP, a German member of the Pirate Party and one of the strongest and most resolute critics of the proposals. On her blog, she posted the text of the most controversial parts of the Directive—Articles 11 and 13—and warned: “This law will fundamentally change the internet as we know it—if it is adopted in the upcoming final vote. But we can still prevent that!”
Article 11 introduces a press publishers’ right (described by critics as a “link tax”) to provide remuneration for newspaper publishers when their content is shared online, for example, by news aggregators. According to Reda’s unofficial version, wording has been added to state that the publishers’ right “shall not apply to private or non-commercial uses of press publications carried out by individual users” or to hyperlinking, or “in respect of uses of individual words over very short extracts of a press publication.” Moreover, the term of the publishers’ right has been cut from 20 years to two years, and a provision has been added to ensure that authors of the works “receive an appropriate share of the revenues” that the publishers receive.
Heightened Liability for Service Providers
Article 13 is even more controversial, as it concerns the liability of online service providers such as YouTube for content uploaded by users. According to Reda’s unofficial text, Article 13 has been rewritten and now states that a service provider “performs an act of communication to the public or an act of making available to the public” when it gives the public access to copyright protected works uploaded by its users. The provider must therefore receive an authorization from the right holder covering users’ acts. If there is no authorization, the service provider will be liable for infringement unless it has made “best efforts” to obtain an authorization, also made “best efforts” to make unauthorized works unavailable, and “acted expeditiously” to block unauthorized access.
Importantly, Article 2 has been revised to exclude providers such as not-for-profit online encyclopedias, open source platforms, and B2B cloud services from the definition of “online content sharing service provider” in Article 13. Text has also been added to Article 13 to exempt service providers that are less than three years old and have an annual turnover below €10 million.
Copyright owners have been among those calling for reform, and their immediate response to the February 13 announcement was positive. But Reda and other critics, including some professors, continue to argue that it is unworkable, over-protective, and limits freedom of speech. In Cologne, Germany, young people held a demonstration against the Directive on February 16.
Google’s voice in the debate is critical, as Article 11 directly affects its Google News service (the company previously suspended Google News in Spain following the implementation of a similar measure by the Spanish government) and Article 13 affects YouTube. In a post on February 7, Google SVP Global Affairs, Kent Walker, said Google had “shared our concerns about [the Directive’s] unintended consequences.” Since the February 13 statement, it has simply added that it is “studying” the final text and that “details will matter.”
Not a Done Deal
Articles 11 and 13 are the most contentious aspects of the Directive, but it covers many other topics, including text and data mining, use of works in digital and cross-border teaching, preservation of cultural heritage, use of out-of-commerce works, and cross-border uses.
Given the continuing criticism of the Directive, talk of a “breakthrough” may be premature. The text now has to be debated by the European Parliament’s Legal Affairs Committee. It can then be amended before a vote in plenary, which must take place before April 18. The Directive can also be blocked in the Council (though this is unlikely). With parliamentary elections taking place in May, opponents of the legislation are seeking to make the Copyright Directive an issue in the campaign.
If the Directive is approved, EU member states will have two years to transpose its provisions into national laws. The UK may or may not do so, depending on the Brexit deal agreed with the EU—but that is a story for another day.
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