What You Should Know About the EU Copyright Directive
In February 2019, the European Union finalized its proposal for reforming its copyright laws, titled “Directive on Copyright Law in the Digital Single Market.” If passed, this EU directive on copyrights could have far-reaching consequences for online service providers and managers of online communities.
This directive has not been signed into law yet. Later this spring, European leaders will take a final vote to determine whether it will become law. If the vote is successful, each of the EU member states will have two years to introduce supporting legislation in their own country.
What Does the Copyright Directive Say?
The directive comes at a time when EU leaders are working to modernize the copyright rules in the EU. Most stakeholders agree that updating these laws are necessary – the last overhaul of these rules took place in 2001. As a result, many of the provisions are relatively non-controversial updates matching the growth of technology.
For example, Article 4 clarifies that schools, universities, and educational establishments can make non-commercial use of copyrighted works, while Article 12 proposes granting sport event organizers copyrights over recordings of their own events.
Articles 11 and 13 have generated the most news coverage because they are the most controversial proposals in the Directive.
Article 11 would change current EU law by granting new rights to press publications for online use of the articles. Currently, authors assign copyrights to publications, which them must prove rights ownership for new works. The proposal would grant direct copyright over online use to these press publications. These rights would expire after one years. This Article specifically applies to journalism and does not apply to academic or scientific publishing.
Article 13 introduces significant new liability rules for online content sharing service providers, such as YouTube, Facebook, Twitter, and Instagram. These content-sharing services must license copyright-protected material from the rights holders. If it is not possible to license the material, and it is posted, the company may be held liable for copyright infringement.
To avoid liability, the company must demonstrate that it:
- Made best efforts to license the work from the copyright holder
- Made best efforts to ensure that material specified by rights holders was not made available, and
- It acted quickly to remove infringing material once it was discovered.
For example, if Article 13 goes into effect and I upload a clip of Sylvester Stallone as Rocky running up the stairs to Facebook as motivation to get into shape, and if Facebook does not already have a license for the movie, it could be liable for this usage.
Article 13 of the EU directive would only apply to services that:
- Have been available in the EU for more than three years or
- Have an annual turnover of more than €10 million ($11.2 million).
This article would not affect “legitimate users,” and would permit people to use snippets of copyrighted material for criticism, review, parody, and pastiche.
The proposed Article 13 is different from “safe harbor” provisions under the American Digital Millennium Copyright Act. These provisions protect internet service providers from liability for copyright infringement as long as they:
- Do not have actual knowledge that the material was infringing a copyright;
- Are not aware of infringing activity; and
- Act quickly to remove infringing material, once they are made aware of it.
However, under the new proposals, online service providers would have a new onus placed on them to catch work before it is uploaded.
Praise and Criticism of the Directive
Authors, composers, writers, journalists, photographers, as well as their representative organizations, such as the European Coalitions for Cultural Diversity, European Music Council, and Federation of European Publishers, support this law.
A letter from 30 such organizations submitted a Joint Statement on the EU Copyright Directive, arguing that the Copyright Directive is a “historical opportunity” that will “create a much-needed level playing field for all actors of the creative sector.
On the other hand, certain groups have come out with harsh words for the final text of the copyright directive.
The Electronic Frontier Foundation (EFF), a US-based nonprofit that champions individual privacy, free expression, and civil liberties on the digital world, issued harsh criticism, arguing that “the giant entertainment companies with unchecked power to exploit creators and arbitrarily hold back scientific research.”
This is because the proposed directive will effectively require online communities to invest in automated copyright filters to ensure that no user posts anything that infringes copyright. YouTube’s ContentID system currently in place, which scans uploaded videos against a database of copyrighted material, is an example of such a filter.
The EFF argues that, because the only companies capable of creating such technology are large American companies, such as Google and Facebook. These companies will be able to grow unchecked because no European company will be able to compete.
There is also a concern that this sort of filtering will also have an unintended censorship effect if a program decides that uploads are a match for known copyrighted works. While hosting companies would be required to have a complaint and redress system, this process would at the very least cause delay and user frustration.
Additionally, because online communities will also be required to make “best efforts” to license anything that individuals could upload to these sites, they will also be required to buy what copyright holders sell them or risk being liable for future infringement actions, at potentially high prices.
Finally, the EFF criticizes rules governing sharing news stories in online communities. Article 11 of the EU Copyright Directive requires that any link containing more than single words or short extracts from a news story must be licensed, with no exceptions. This provision could potentially limit the free flow of information regarding world events across online platforms.
This article is for informational purposes only. It does not contain legal advice, nor does it create an attorney-client relationship. If you regarding copyright law, or other intellectual property matters, contact our experienced IP and Internet attorneys today with the form on this page, or call us at 855-473-8474.