27 March 2019Copyright

Google to ‘work with’ rights owners after Copyright Directive approval

The EU Copyright Directive is set to have a major impact on Europe’s copyright landscape, but the immediate implications are uncertain, according to lawyers.

The European Parliament  approved the controversial law yesterday, March 26, by 348 votes to 271. It will now go to the European Council for formal approval next month.

Once approved, EU member states will have until 2021 to transpose the directive into national law.

The most contentious elements of the directive have been articles 15 and 17 (formerly 11 and 13). Article 15 will allow search engines to display only “very short” extracts of news articles, and make online platforms liable for infringing content hosted on their sites.

The law has been met with significant opposition from tech companies and other critics who fear it will negatively impact on internet freedoms in Europe.

In a statement sent to WIPR, a Google spokesperson said that the final text of the directive was “improved but will still lead to legal uncertainty and will hurt Europe’s creative and digital economies.

“The details matter, and we look forward to working with policy makers, publishers, creators and rights holders as EU member states move to implement these new rules”, the spokesperson said.

Rohan Massey, global head of privacy and cybersecurity at Ropes & Gray in London, said that the directive was a “significant step towards redrawing the European copyright landscape”.

“By requiring that online platforms remove or filter copyrighted material from their sites and holding them liable for copyright infringements, the costs of doing business for platforms and aggregation sites will increase,” Massey added.

He warned that these changes could come “at the expense of smaller players”.

Unclear implementation

Echoing Massey’s thoughts on the directive’s significance, Alastair Shaw and Morten Petersenn, counsel and partner at Hogan Lovells respectively, said that yesterday’s vote marked a “major milestone in the development of EU copyright law”.

Yet it is still not clear exactly what the implications will be, they said. In particular, the final version of article 17 leaves “a lot of question marks”.

The European Commission is now required to issue guidance on the application of the measures, which critics fear will effectively require online platforms to impose content filters to detect infringing content.

Any such guidance should contain “more precise suggestions of technical solutions to comply with the limitation of liability regime”, they said.

The Hogan Lovells lawyers noted, however, that this guidance would ”not be binding on the Court of Justice of the European Union (CJEU), leaving uncertainty for both content sharing platforms and rights holders”.

They added: “We expect that national courts and ultimately the CJEU will have to answer a number of questions, including, in particular, what amounts to ‘best efforts’ in relation to the various obligations on content sharing services”.

Questions still remain over whether the UK will be required to implement the directive as it lines up to leave the EU.

Whether the directive would come into effect in the UK largely depended on the circumstances of Brexit, Shaw said.

“Assuming the terms of the 'deal' in relation to EU law remain broadly as they are now, then this legislation will have to be transposed into UK law”, he said.

If the UK leaves the EU without a deal then there will be no obligation to transpose the provisions into UK law.

‘Victory’ for creators

Raffaella De Santis, associate at Harbottle & Lewis in London, said that despite the controversy over the proposals, “artists and creators will hail the passing of the directive as a real victory for their right to be fairly paid for their creations”.

She noted, however, that the new law could have “very concerning and unintended consequences for vast swathes of online services, not simply those operating in music or news”.

De Santis urged lawmakers to “ensure that smaller services are not disproportionately disadvantaged by measures which are in reality designed to curtail the formerly unchecked power of the tech giants”.

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More on this story

28 March 2019   More than 10 members of European parliament (MEPs) accidentally voted the wrong way on a key amendment to the new European Copyright Directive, which passed earlier this week.
14 April 2020   The French competition regulator has ordered Google to negotiate royalties with news publishers for use of their content, in line with the EU Copyright Directive.
20 November 2020   Technology company Google has made progress in its negotiations with press publishers, signing copyright agreements with six French newspapers and magazines.