EU failing to fix copyright directive: lawyers comment on leak

A document leaked last week suggests that little progress has been made to address criticisms levelled against the draft EU copyright directive, lawyers have told WIPR.

The leaked document was shared by Politico, on Friday, November 16.

Lukas Feiler, senior associate in Baker McKenzie’s Vienna office, explained that the document contains compromises suggested by the Austrian Presidency of the European Council.

But according to Feiler, the draft “changes very little and does not address the criticism voiced by certain member states and stakeholders”.

The European Parliament voted in favour of modernising EU copyright law in September, but interest groups and industry associations have raised a number of concerns about the directive

One of the provisions causing upset is article 13, which would require internet platforms to filter content to detect copyright infringements.

The directive is currently going through the ‘trilogues’, where member states’ governments can negotiate with the EU in an effort to produce a final version of the law before the final draft is presented to European Parliament for a vote.

But the leaked document, which contains proposed revisions to article 13, has failed to impress practitioners.

Brussels-based Pieter Van Den Broecke, partner, and London-based Kathy Berry, professional support lawyer, both at Linklaters, said that the leaked document does not bring a great deal of clarity to the incoming law.

For example, under the new text of the leaked document, online content sharing providers will be required to meet numerous obligations that are drafted in “broad and ambiguous terms”, they said.

This makes it difficult to advise providers on the steps they must take to meet the requirements of article 13, resulting in a lack of legal and commercial certainty until the area is “fleshed out by European jurisprudence”, Van Den Broecke and Berry added.

Nils Rauer, partner at Hogan Lovells’ Frankfurt office, similarly suggested that certain issues, such as the role of upload filters in filtering out infringing content, may be considered and clarified by the Court of Justice of the European Union in the future.

Van Den Broecke and Berry noted that one positive step in the leaked document is the clarity on the relationship between article 13 and the liability exemptions for internet service providers (in article 14 of the electronic commerce directive, 2000/31/EC).

The leaked draft said: “When an online content sharing service provider performs an act of communication to the public or an act of making available to the public, it shall not be eligible for the exemption of liability provided for in article 14.”

Rauer explained that matters are now progressing—there are three trilogue meetings in the next three weeks, compared to three in the last two and a half months, which “shows that things are moving”.

But another hurdle could be the position of the new Italian government, Rauer speculated, as it does not support the compromise the previous government and European Council reached in relation to the directive.

Chris Williams, partner at Blake Morgan in London, added that article 13 remains “hugely unpopular amongst great swathes of a highly vocal electorate across the EU”, and domestic legislators will think carefully about introducing law which is perceived as curtailing entrepreneurism and creativity.

“The devil is in the detail,” Williams said. “Given how entrenched both sides of the debate are, coupled with how highly contentious the issue of online censorship is, I really do not see an easy fix.”

Felier agreed, and added that the heated discussion around the proposal shows that copyright law is one of the most contested battlefields for the regulation of the internet.

“The EU legislator would be well advised not to stifle innovation in the name of copyright law,” he said. “If I had to bet on it, I would say that this proposal will not become law.”

WIPR has contacted the European Council for comment.

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