EU copyright vote: 3 major impacts
The European Parliament’s controversial vote in favour of modernising EU copyright law will have a major impact on platform filters, user-generated content, and publishers’ rights, according to IP practitioners.
Yesterday, September 12, 438 MEPs voted in favour of implementing amendments to EU copyright law, in efforts to put an end to the “digital wild west”, according to Antonio Tajani, president of the Parliament.
Just 226 MEPs voted against the directive, and 39 abstained.
Filtering
Article 13 of the directive, which requires content-sharing platforms to filter copyright-protected works in order to prevent publication of infringing material, is “very controversial”, according to Fabian Böttger, counsel at Baker McKenzie.
For example, in the opinion of the Electronic Frontier Foundation (EFF), it sets the stage “for mass, automated surveillance and arbitrary censorship of the internet” by requiring platforms to examine all posts, from tweets to software code, and censor anything potentially infringing.
Julia Reda, an MEP from Germany, noted that the filters will be “error-prone” and result in “perfectly legal content” being censored.
Automatic filter software “often gets it wrong”, said Edima, an internet platform association that includes Facebook and Google, last month. As the software is also “hugely expensive”, start-ups and small service providers cannot be expected to take such a measure, Edima claimed.
Nick McDonald, partner at Potter Clarkson, questioned how realistic it is to expect platforms and social media providers to implement filters that effectively sift out copyright-protected content, but still allow the free flow of legitimate content.
Consumer groups, such as the European Consumer Organisation, have also said that the consumer benefits of the internet are now at risk as a result of the vote, as content uploads may be “unjustifiably blocked” by platforms’ filters.
User-generated content
On Monday, two days before the vote, non-profit research association the European Policy for Intellectual Property said that the directive should include exceptions for the user-generated reproduction of works for creative and expressive uses, such as for memes.
Although the Parliament issued a statement which indicated that memes and derivative fan works are “absolutely not in danger”, there are concerns that the new directive will inhibit consumers’ freedom of expression.
This is particularly because, as the EFF noted, the Parliament rejected proposals to include a user-generated content exemption in the directive.
Shireen Peermohamed, partner at Harbottle & Lewis, said there was concern that the new directive would “kill off memes and other parody content” in the lead up to the vote.
However, the new legislation is unlikely to end meme culture, according to Nick White, partner at Charles Russell Speechlys.
He said that memes have “always technically involved copyright infringement”, but the new directive will probably give rights owners “a louder voice” in determining the fate of meme culture.
Press publishing
Article 11 of the directive addresses the so-called value gap, which is the remuneration received by authors/performers compared to the profits made by the internet platforms that make the works available.
This will give publishers additional protection regarding the digital use of their press publications.
Peermohamed explained: “In answer to some of the criticisms levied against the original text, the EU press release confirms that this will not catch the sharing of hyperlinks to content such as news stories.”
Böttger, of Baker McKenzie, said that such a provision was introduced in Germany in 2013, but in practice, many publishers have chosen not to make use of the new protection.
“In practice they waived the right to ensure that their publications continued to be shown by news aggregators,” he explained.
Reda explained that Germany’s courts have yet to clear up the legal uncertainty on where the line should be drawn on the “link tax”.
Nils Rauer, partner at Hogan Lovells, noted that article 11 will not apply to private and non-commercial uses of links, such as blogging.
Böttger predicted: “If the German experience is any guidance, the practical impact of the additional protection of publishers under article 11 may be less than expected.”
Next steps
Adam Rendle, senior associate at Taylor Wessing, said it is important to review the official publication of the draft directive in order to properly reflect on its detail and the legal context.
However, he believes that the amendments to EU copyright law build on well-known principles from the Court of Justice of the European Union’s case law.
Peermohamed said that yesterday’s vote “is not necessarily the final chapter”.
She explained that the Parliament still needs to vote on the final text before asking member states to implement the directive, and that if this does not occur before Brexit (March 29, 2019), “we will have to wait and see to what extent its provisions will make their way into UK law”.
The Parliament has said it will now start negotiations with member states on the new copyright rules, “to ensure fair pay for artists and journalists in today’s digital world”.
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