The European legislative landscape is now in a heated debate about the new Copyright Directive, a directive that seeks to regulate the creators’ copyright remuneration for their online content. Simply put, it refers to situations when journalists, musicians, actors etc. creates content that is published in the online environment, content that is then retrieved and published by different people on various platforms and publications. At this time, this content can be freely retrieved without the obligation to pay its author for redistribution. The Directive aims to force large online platforms (such as Youtube or Google News) to pay royalties to news publishers and content creators for their content shared on their platforms, considering that those who share that content are platforms users and not the platforms themselves.
The new regulation encountered strong opposition from platform users and platforms owners, who believe that this will lead to restrictions regarding freedom of expression in the online environment and right to information because, in order to avoid paying such remuneration, those platforms will stop the sharing of such content.
What critics say
The online complaints about the Copyright Directive are particularly focused on Articles 11 and 13.
Article 11 regulates the so-called “link tax”. Thus, reproduction that contains more than one word or very short news extracts will require licensing.
Therefore, Google, Facebook, Reddit, or any other media platform should pay the tax to the rightsholders for posting links to their content or for snippets posted via platforms by users.
Critics argue that, in addition to the fact that no exceptions have been introduced for services broadcasted by individuals or small companies owning monetized websites, art. 11 has the following drawbacks:
- does not establish what is meant by “very short extracts”, leaving the jurisprudence to determine the meaning of the phrase;
- does not define “news sites”, “commercial platforms”, and their meaning will be established by courts as in the case above;
- involves the use of multiple licensing regimes from each Member State, thus making it more difficult for those operating in more than one Member State, which may lead to the impossibility of quoting or linking content without having a license to do so.
Faced with this Directive, according to Bloomberg (https://www.bloomberg.com/news/articles/2019-01-22/google-says-it-s-considering-pulling-news-service-from-europe), Google has reported that will consider closing Google News in Europe if the Directive applies. Note that some time ago, Google closed Google News services in Spain due to similar legislative changes (https://europe.googleblog.com/2014/12/an-update-on-google-news-in-spain.html).
Regarding art. 13, things are even more complicated, with discontents being more numerous due to consequences that could seriously affect the online environment. They concern especially:
- requiring commercial websites and application owners where users can post/share content to “make the best efforts” to license any content their users can upload,
- requiring most websites (with few exceptions – small ones and very new ones) to take all measures to prevent online accessing or publishing of any unauthorized copy of a copyrighted work that an rightsholder has registered with the platform.
In order to comply with the requirements imposed by art. 13, even if not expressly provided, the following problems arise:
- the need to use upload filters;
- licensing all copyrighted content in the world.
Both upload filters and global licensing involve considerable costs and practical application problems. It is known that where filters were implemented, they did not work properly, often censoring legal content, for example when YouTube filters ranked a 12-second record of a cat that was purring as copyrighted content of EMI Music. More details and cases of poor filtering can be found here (https://juliareda.eu/2017/09/when-filters-fail/).
The critics opinion is that the Copyright Directive may threaten the future of the Internet by turning it into a tool for monitoring and controlling users by using content filters and limiting the freedom of expression and the access to information by introducing the link tax.
Opinion of the European Parliament
In the context of these heated debates, the European Parliament issued a press release on its website https://www.europarl.europa.eu/news/en/press-room/20190111IPR23225/q-and-a-on-the-draft -digital-copyright-directive? fbclid = IwAR2ewsKPgMYlYJr0b2epKzfoRFxeeC3gJKZTfJjTqJ24Y405VqEukrJkKGE through which it tries to answer the most controversial issues related to this Directive. The press release refers to the Directive’s version negotiated on 13 February 2019.
The EP believes that its approach does not create new rights or obligations. It is nothing more than a reinforcement in the online environment of copyright belonging to the content creators. Furthermore, what is currently legal and allowed to be shared will be the same under the new Directive.
The EP says the Directive will not affect the individuals, the regular platform users, but wants that the profit which is obtained by the big platforms as a result of online sharing to be shared with the creators of this content. Thus, platforms are encouraged to enter into “fair” licensing agreements with content authors and to assume their responsibility for hosted content.
Regarding the internet censorship critics, the EP says that the Directive does not do that. It only increases the legal responsibility of the platforms, but does not forbid users to upload content or platforms to host it.
Since skeptical voices raised the problem of the appearance of upload filters, as mentioned above, the EP points out that the Directive does not force the implementation of filters, nor does it provide for what kind of methods could be used, so setting up filters might be possible. Although is true that upload filters may fail sometimes, the EP considers that all the criticism should not be directed against it, but against those who created them.
Furthermore, the meme and GIF content are not covered by the Directive and are expressly protected. Also, the sharing of snippets or individual words from copyrighted content is exempted from paying the tax, provided the platform does not abuse by this facility. Moreover, the platforms less than 3 years old with an annual turnover of less than EUR 10 million and an average number of unique monthly visitors of less than 5 million will not have the same stringent obligations as large platforms according to the new Directive.
Thus, the EP considers that this approach stimulates quality content and fair remuneration, in particular by protecting authors with fewer resources to defend their rights. It also stresses that the whole fierce challenge of this Directive is an exaggeration of lobbyists, giving examples from the past where the catastrophic results predicted by them in other situations have not occurred.
What we know for sure is that the Directive will be adopted in one form or another. With all the criticism, we will watch the process closely to see if the current form of the Directive is the one that will be adopted.
The Directive is not immediately applicable, it will have to be implemented in the EU Member States by adopting their own national laws within 24 months of its publication in the Official Journal of the EU.