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14 February 2019Copyright

Agreement reached on European Copyright Directive

News of a final agreement on the proposed European Copyright Directive has prompted concern from long-term opponents of the law.

According to  a press release from the European Parliament, trilogue discussions with the European Commission and the European Council have resulted in a deal that will now go before the parliament’s legal affairs committee for final review.

Although the text of the proposal has not yet been published, the statement, issued yesterday, February 13, outlined the key elements of a deal which has generated significant controversy among both industry and internet freedom groups.

Julia Reda, a member of the parliament representing the Pirate Party in Germany, has also uploaded the “final wording” of  Articles 11 and  13 to her website.

The final text appears to contain a compromise on Article 11, or the so-called “snippet tax”, which has been met with fierce opposition from tech companies. The measure would have required internet platforms to license “snippets” of articles and online content to display on search engine results.

According to the release, “sharing snippets of news articles will not engage the rights of the media house which produced the shared article”. The directive will, however, impose restrictions on platforms, allowing them to only display “very short” excerpts from articles on search engines.

Kathy Berry, professional support lawyer at Linklaters law firm in London told WIPR that “this amendment may mean that the final Article 11 will not require news aggregators to pay licence fees or change their business model and therefore that it no longer has any real teeth”.

Agreement has also been reached on the controversial Article 13, which has sparked fears that internet platforms would be required to implement content filters to detect infringing content. According to the press release, the final text of the directive “will not impose filters”, but will still make internet platforms liable for infringing content on their sites.

“Making internet companies liable will enhance rights holders’ chances to secure fair licensing agreements, thereby obtaining fairer remuneration for the use of their works exploited digitally”, the release said.

Berry said that the latest leaked versions of Article 13 remain somewhat ambiguous with respect to which companies will be hit by the new measures.

“If these ambiguous terms and obligations are not further clarified in the final draft, this is likely to result in an ongoing lack of legal and commercial certainty until the scope of the directive is fleshed out by European jurisprudence”, Berry said.

Uploading of protected content for the purposes of “quotation, criticism, review, caricature, parody or pastiche” will still be allowed under the proposed law, meaning that users will still be able to freely share “gifs” and “memes”.

Andrus Ansip, vice president of the European Commission for the digital single market, welcomed the news in a post on his Twitter page, saying that “Europeans will finally have modern copyright rules fit for digital age with real benefits for everyone”.

Tech industry groups, however, who have long opposed the directive, continue to have concerns. In a  statement, the Computers and Communications Industry Association (CCIA), whose members include Google, Facebook, Amazon and e-Bay, said the deal was a “a lost opportunity to achieve a balanced and future-proof EU reform”.

“We fear the law will harm online innovation, scaleups & restrict online freedoms in Europe”, the CCIA said.

The Electronic Frontier Foundation, which promotes internet freedom, has  hailed the proposed text as “worse than any in the Directive's sordid history”.

Francine Cunningham, senior public affairs manager at law firm Bird & Bird, said that “while EU negotiators have managed to get this controversial piece of legislation over the line ahead of the European Parliament elections in May, both creative industries and online platforms will have many questions about the practical application of the proposals”.

“In the end, it will likely be up to the courts to decide whether platforms have really made ‘best efforts’ to avoid copyright infringement by the users and what ‘very short extracts’ are excluded from the new press publishers’ right”, Cunningham said.

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More on this story

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25 March 2019   European academics specialising in IP have asked the EU to drop Article 11 (now Article 15 in the latest version) and 13 (now Article 17) of the proposed Copyright Directive.
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15 April 2019   The European Council has adopted the proposed copyright directive, which was given the go-ahead by EU parliament and lawmakers last month.
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3 November 2021   Spain is the latest country to adopt the EU’s new copyright directive, which allows publishers to negotiate rates to rehost their news on search engines and social media websites.