6 February 2019Copyright

EU to consider 'softer liability' in copyright directive

A  leaked proposal for negotiations on the European copyright directive has indicated some support for a “softer liability regime” for smaller companies.

The European Commission proposed the Directive on Copyright in the Digital Single Market in 2016.

In September 2018, the European Parliament approved the directive, which then progressed to a “trilogue” discussion between the Commission, the Parliament and the Council of the European Union.

In the document, leaked by Politico, the Romanian presidency of the Council of the European Union put forward several compromises in an attempt to break the impasse between member states on controversial elements of the proposals.

The proposals were sent to the Permanent Representatives Committee (COREPER), which consists of each member state’s permanent representatives to the Council, on Monday, February 4.

The document includes a suggested compromise on Article 13 of the proposed directive, which has attracted the ire of both tech companies and anti-censorship activists. The article, as currently outlined, would require internet platforms to apply a content filter to detect potential copyright infringements.

In September 2018, the Electronic Frontier Foundation  attacked Article 13 as the precursor to “mass, automated surveillance and arbitrary censorship of the internet”.

The new compromise proposal would afford smaller enterprises a “softer” liability regime.

Smaller service providers which have infringing material on their platforms should only be subject to a letter ordering them to remove the copyrighted works, the presidency suggested. This category would include companies who have been active in the EU for less than three years, and have an annual turnover below €10 million ($US11,387,437).

If the average number of monthly unique visitors to a service provider exceeds 5 million, then the provider should also demonstrate that it has made “best efforts to prevent further uploads of the notified works”, the document said.

The leaked proposal also reiterated that service users should be allowed to use copyright protected works for the purposes of “quotation, criticism, review, caricature, parody or pastiche”, but suggested removing “illustration” as one of the proposed exceptions to the new law.

The next meeting of European institutions, or trilogue, to discuss the proposal is scheduled for Tuesday, February 12. According to the leaked document, the presidency has invited COREPER to update its negotiating mandate ahead of the meeting.

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