EU Copyright Directive – ambitious EU, agonising effects?

Contributed by: Ong Zhe Yi

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The EU Copyright Directive

The Internet is a weird and wonderful world, providing people with an avenue to showcase their creativity, flair and various oddities. Pertinently, it has transformed the way in which people consume entertainment. We now rely heavily on the Internet for music, films, TV shows, and for some people, memes. However, with the proliferation on Internet platforms such as YouTube, it has become incredibly easy to reproduce content online and communicate it to the many other Internet users. Consequently, copyright infringement has become a significant problem for content creators. Relatedly, some critics have argued that Internet platforms have been unfairly benefitting from this situation.

Seeking to update online copyright laws to better protect creators by reducing the profit gap between Internet platforms and content creators, the European Parliament approved the Directive on Copyright in the Digital Single Market 2016/0280 (COD) (“EU Copyright Directive”) just last month. In particular, Articles 11 and 13 have caused quite a bit of controversy and hence, these will be the focus of this Update.

Article 11

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Article 11 allows publishers of press publications to “obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers”. For instance, an online publisher could obtain remuneration if their article is featured on Google News and other news aggregators. This may be possible even if only a small snippet of the article is used.

Nevertheless, users are allowed to share hyperlinks with “individual words” to describe them. Also, Wikipedia and other open source software platforms, such as Github, do not need to comply.

Article 11 has been criticised for preventing the free flow of information. Also, it is possible that this remuneration requirement may backfire. Similar rules were implemented in Spain, but failed to benefit publishers and journalists. For example, Google News withdrew from Spain and caused a significant drop in traffic to news sites, which affected small publishers greatly.

The usefulness of Article 11 may continue to be in doubt unless workable arrangements are made between publishers and news aggregators. Until then, it seems that enforcing this right against online news aggregators may instead cost the publishers.

Article 13

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Article 13 places an onus on “online content sharing service providers” to “conclude fair and appropriate licensing agreements with right holders”, and if such licensing agreements are not procured, such service providers “shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services”.

While Article 13 aims to ensure that copyright owners are properly remunerated, online platforms now have the burden of ensuring that content uploaded to its platform does not include unauthorised copyrighted work.

Nevertheless,  Article 13 may result in various difficulties. First, it is unclear what specific mechanisms should be in place for websites to efficiently and accurately suss out and remove unauthorised protected works. Pre-amendment, Article 13 suggested the use of “efficient content recognition technologies”, which is likely similar to Youtube’s Content ID system. However, this mechanism is not perfect, and it is unclear if it will result in inaccurate, and therefore unneeded censorship of similar, but non-infringing content. In addition, a related concern is whether content would be blocked even before they are uploaded onto platforms, which may lead to widespread censorship of content. In this respect, it is no wonder that many are fearing the inevitable banning of memes, since memes often rely on copyrighted material, such as screen captures from movies.

Further, even though the requirement for efficient content recognition technologies has been removed from Article 11, member countries can still require these technologies to be used. This is because while a directive is binding in the countries to whom it is addressed as to the result to be achieved, it leaves to the national authorities the choice of form and methods (Article 288, Treaty on the Functioning of the European Union). If such technology is considered to be the standard in some member countries, it may be too onerous for small platforms, which have been reliant on copyright holders to file complaints against infringing content instead. It also begs the question of whether companies, and their algorithms, are truly in the best position to prevent the reproduction of all kinds of copyrighted work. While these algorithms are useful, they should be a tool and not the entire basis upon which content is removed.

However, it is hoped that the rules will eventually pay regard to the wide variety of platforms that exist on the Internet. This is suggested by the amended Article 13, which states at (3) that dialogues shall be organised between stakeholders to “harmonise and to define best practices” and “[w]hen defining best practices, special account shall be taken of…the use of exceptions and limitations as well as ensuring that the burden on SMEs remains appropriate and that automated blocking of content is avoided”.

Nevertheless, it remains questionable whether online platforms should have the onus of enforcing copyright compliance on content uploaders. A unilateral action of deleting unauthorised content seems to leave little room for copyright owners to decide if they wish to allow the use of their copyrighted content. For instance, if the popularity of the unauthorised content may bring about greater publicity to the copyright owner’s original works, he/she should be able to decide if such content should be allowed to exist, notwithstanding any possible infringement and loss of fees.

Conclusion

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To conclude, it remains to be seen how member countries will apply the rules at this juncture. Member countries can devise their own laws in meeting the goals set out in the EU Copyright Directive. Hence, some member countries may enforce the EU Copyright Directive more strictly than others, possibly resulting in impractical and onerous obligations Ultimately, a proper balance should be struck between the rights of copyright owners and obligations placed on online platforms. To enforce these obligations too strictly may instead curtail the benefits that the Internet has brought about.

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