Draft Copyright Directive in state of flux as European Parliament rejects controversial proposals
Following the European Commission's initial proposals in September 2016 on the draft copyright directive in the digital single market (the Copyright Directive) and after some long and intense debate, in particular in relation to Articles 11 and 13 (see below for further detail), it seemed that we were edging closer to an agreement on the text of the directive. The Council's permanent representatives committee (Coreper) agreed a common position on the text at the end of May and the Legal Affairs Committee of the European Parliament (JURI) followed suit and voted on 20 June 2018, adopting the approved text. This was despite a significant amount of fierce lobbying in recent months, urging the European Parliament to reject the draft. However, the plenary vote (where all MEPs come together) took place last week on 5 July 2018 and in a shock turn around, the European Parliament rejected the current draft by a margin of 318-278. This means that Parliament’s position will now be up for debate, amendment and a further vote during the next plenary session in September 2018 (10th-13th), instead of progressing to the fast track trilogue negotiation process. Interestingly, Italian Wikipedia shut down in protest over the controversial proposals ahead of the plenary vote last week and English-language users of the site were faced with large banner adverts urging readers to contact their European representatives before the vote in protest against the proposals. This is in contrast to the music industry (IFPI - representatives of the recording industry) which released a letter from Sir Paul McCartney to MEPs urging them to support the proposals.
What is the new Copyright Directive for?
The draft directive aims to modernise copyright law to adapt to the fast-pace of the modern digital world. It is a much-needed update given the last copyright laws introduced to deal with the information society date back to 2001 and technology has advanced significantly since then. The current (now rejected) text, however, has led to some deeply opposing views between content owners on the one hand, and online platforms on the other, the latter being particularly concerned with Articles 11 (press publishers' right) and 13 (in relation to the "value gap" or "transfer of value").
What are the concerns?
Article 11
Often referred to as the 'link tax' or 'Google tax', the draft Article 11 proposed a new press publishers' right which would effectively allow publishers to charge news aggregator business models, for example Google News, for hyperlinking to news articles. News articles are already protected by copyright if they satisfy the originality test i.e. original in the sense they are the author's own intellectual creation. Snippets from those articles, however, such as a headline or a sentence do not fulfil this originality requirement and are therefore not protected by copyright (although the Meltwater case did suggest that a headline could, in some cases, be protected). It is therefore possible to refer to an article entitled, for example, "Harry Kane delights English fans everywhere", by way of a hyperlink, without permission from the author or publisher. The proposed neighbouring press publishers' right does not require originality but requires an investment by the publisher. Therefore, if the Article 11 proposal was to be accepted, it would no longer be allowed to refer to a news article by its title or a snippet or sentence when linking to it, without paying a licence fee to the publisher. Those in favour of this neighbouring right have confirmed that its main purpose is to create a new exclusive right over small snippets that are not currently protected under copyright law. This has been criticised for being a significant barrier to freedom of information online.
In Germany, Spain and Belgium, a similar neighbouring right already exists but this new right has not been without its problems. In Spain, Google News shut down its Spanish operations rather than pay publishers to link to their content. The Spanish Ministry of Culture claimed at the time that it was not hindering freedom of information, but protecting the intellectual property rights of others. In Germany, though the measure was aimed at forcing Google News to pay German newspapers for links in its search results, many publishers opted out without taking a fee because it would have had a detrimental effect on the internet traffic being directed to their websites.
Article 13
Content industries have been growing more and more concerned about the amount of unlicensed copyright content finding its way to platforms such as YouTube and other similar platforms. As a result, content creators, such as musicians and journalists, feel that there is not a fair distribution of revenues from the online use of copyright works that adequately benefits creators, publishers and platforms alike. This shortfall has become known as the "value gap". In an attempt to bridge this so-called "value gap", lobbyists (including high profile musicians like Paul McCartney and Annie Lennox) have pushed for new legislation under Article 13, which, controversially, puts pressure on content platforms to introduce automatic upload filters, which will block all videos, photos and texts that raise suspicion of copyright infringement before it has even been made available to the public.
On the opposing side, Article 13 has sparked some fierce opposition from legal scholars, digital activists, politicians (e.g. well-known Pirate Party MEP, Julia Reda) and more prominent figures such as, World Wide Web inventor, Sir Tim Berners-Lee, Internet pioneer Vint Cerf and co-founder of Wikipedia, Jimmy Wales. The latter lobbyists sent an open letter to the European Parliament in June this year expressing their grave concern that the draft proposal posed a huge imminent threat to the Internet. Whilst they, as content creators themselves, appreciated and accepted that there must be a fair distribution of revenues when it comes to the use of online copyright works, they are concerned that requiring Internet platforms to perform automatic filtering of all user-generated content would turn the Internet from an open platform for sharing and innovation, into a 'tool for the automated surveillance and control of its users'. Wikipedia relies on contributions from the public so both Articles 11 and 13 if they had gone through, could have had a huge impact on the website. The European Commission had tried to assuage Wikipedia in May this year by proposing a draft exemption for encyclopaedias acting in a 'non-commercial purpose capacity' but every file of Wikipedia is licensed for commercial use.
Some have gone so far as to say that Article 13 would kill the Internet as we know it. The letter goes on to make the point that the 'balanced liability model' established under the Ecommerce Directive has, so far, been working well – those who upload content to the Internet bear the initial responsibility for its legality, and platforms must assume that responsibility if and once they are notified of any illegality. By inverting this system and requiring platforms to filter content at the first instance could have a huge impact on businesses – "The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial". One of the great concerns about the draft proposal is the lack of clarity and consistency for the definition of which Internet platforms would be caught and which may be exempt. A worse case scenario could see some online platforms steering clear of Europe which would have a dire impact on European consumers.
Another issue is that automated upload filters are expensive so there has been a great deal of concern about this extra burden on many websites if the law was to go through. There is also concern that these systems would have a high error rate because some of the technologies have still not been developed to a point where their reliability can be guaranteed. Some critics have labelled the potential filter systems as "censorship machines" because there is a concern that popular memes, parodies, remixes and other small amounts of user-generated content would no longer be freely available on the Internet.
As well as the cost burden of automatic filtering technologies, critics say they could prevent European start-ups and SMEs from competing with large American Internet platforms.
We must not lose sight, however, of the reason for the EU proposal in the first place. The problem of online infringement is currently off the scale and shows no sign of abating unless something is done to prevent it. Press reports have indicated that Google alone receives three million take down requests everyday.
Comment
There have been mixed reactions following the rejection of the draft directive by the EU Parliament. We can only hope that the European Council and the European Parliament will be able to find a compromise that addresses and balances the competing interests of content owners, online platforms, news aggregators and Internet users generally, without restricting the proper functioning of the Internet and impeding creativity and innovation online. It remains to be seen whether some parts of Articles 11 and 13 will be preserved or whether they will go back to the drawing board (as some press reports have indicated) and draft new proposals from scratch. But one thing is for sure - the text will not pass in this version.
The situation is even more complicated by the fact that Brexit negotiations are ongoing (and MPs seem to be dropping like flies over the UK's Brexit strategy). The fact that EU Parliament has now rejected the draft is likely to lead to further delays, by which point the UK may have left the EU and the directive may never be implemented into the UK.
We will be sure to report back in September after the next plenary vote. In the meantime, watch this space for, no doubt, some further campaigning from both sides!