EU copyright directive passes with questions remaining over upload filters

On 15th April, 2019, the Directive on Copyright in the Digital Single Market was approved by all EU legislative bodies. This aims to “modern[ise] EU copyright rules for European culture to flourish and circulate”. Member states are required to implement the Directive’s provisions, into national law, within 24 months.

 

As we’re starting to realise, all too keenly here in the UK (where, because of delays in Brexit it is likely that this will now continue to be enshrined in UK law), nothing concerning the EU is plain sailing - particularly given the somewhat vague wording within the Directive itself. A number of member states issued statements concerning their own interpretation of the Directive, alongside commentary on how it will be implemented. This can be read here. There is widespread concern that member states will implement the Directive in different ways, causing yet more confusion.

 

The Directive has three main areas of focus:

 

  1. Online content sharing service providers that are hosting and optimising user generated content would be directly liable for unauthorised use of copyright protected works, unless they (i) had made “best efforts” to obtain a license, and, additionally, (ii) undertook “best efforts” to ensure the unavailability of notified works, and, (iii) acted expeditiously upon notification to remove such content. “Best efforts” will be judged taking principles of proportionality, the size of the service, as well as the availability of suitable and effective technology into account.

  2. Newly established small and medium-sized enterprises with less than 5 million monthly unique visitors would fall under a “softer liability regime” for a maximum of 3 years. Completely excluded from liability under Article 13 would be, for example, B2B cloud services, electronic communications services, online (retail) marketplaces, open source software development and not-for-profit educational platforms.

  3. The online use of press publications, aged up to two years, would require obtaining a license from the publisher, except for (i) private and non-commercial uses by individual users, for (ii) hyperlinks, or for (iii) “individual words or very short extracts.” Press publishers would be granted an ancillary copyright, covering the reproduction and making available of such content by information society service providers (excluding only hyperlinks accompanied by “individual words or very short extracts”).

 

The Directive also introduces exceptions and limitations (e.g., for text and data mining (incl. in favor of commercial enterprises)); provisions regarding collective licensing; and recall, transparency, and fair remuneration rights for authors.

 

Stakeholder dialogues will be used to attempt to achieve a harmonised implementation of the Directive. In particular point 1 (Article 17) above, sits central to these discussions and, in particular, the agreement of what constitutes “best practice”. Specifically, this raises questions of the role of upload filters. Germany continues to strongly oppose their use. France is in favour of a copyright protection mechanism that includes upload filters. The Netherlands, Luxembourg, Poland, Italy and Finland (all of which rejected the Directive in the final Council vote) consider it “to be a step backwards for the DSM, failing to strike a fair balance between the protection of rights holders and the interests of citizens and companies, or to provide legal certainty”. In the UK, leadership candidate Boris Johnson insisted that the UK would not apply Article 17, arguing it would be “terrible for the internet.” Questions continue to be asked as to whether currently available algorithm-based filters would even be able to sufficiently differentiate between infringing and non-infringing content. 

 

As a result, the stakeholder dialogues (and in our case, a decision as to who becomes Prime Minister and the path Brexit takes) will play an important role. Not only will they focus on agreeing a less vague and uniform interpretation of the wording of Article 17, but they will be important for online content-sharing service providers hoping to be included in the list of platforms to which Article 17 does not apply.