In the digital era, having a website is a fundamental cornerstone to establishing your business, brand and client base. To enhance your website you might have licensed image content from a third party and your terms and conditions will probably point out that you take no responsibility for any intellectual property infringement. However, in the future this may no longer be sufficient and businesses may potentially be held liable for material uploaded to their website that breaches a third party’s copyright.
What is Article 13 and what does it say?
Article 13 of the EU Copyright Directive, which is likely to come into force very shortly, provides that content sharing platforms could be liable for their users uploading copyright protected material. Critics voice concerns that these rules are not fit for the new media age.
Under Article 13, content sharing platforms must obtain permission from the right holders to publish copyright protected material. Copyright protection is an automatic right which grants the creator of an original work exclusive rights to determine how this work may be used by others.
If Article 13 becomes law, platforms will be held liable unless it can be demonstrated that they have:
- used their best efforts to get permission from the copyright holder;
- ensured that material specified by the rights holders was not made available; or
- acted quickly to remove infringing material.
Who will Article 13 effect?
Companies which allow the public to access “copyright protected works or other protected subject-matter uploaded by its users”, such as Twitter, Instagram, Facebook and YouTube, will be affected.
This legislation will only apply to services that have been available in the EU for more than three years or which have a turnover of more than €10 million.
There are further exemptions, for example, the rules will also not apply to non-profit online encyclopedias, business-to-business cloud services and online market places.
What are the concerns?
Critics say that it would be near impossible for companies to foresee and obtain permission for protected material before their users upload content to their site. Whilst Article 13 does not require companies to filter uploaded content, practically it may be the simplest solution to satisfy the “best effort” criteria.
YouTube already has its Content ID system, which can detect copyright-protected music and videos and block them accordingly. Implementing this type of filter would be a costly barrier for smaller companies and start-ups looking to enter the industry.
Algorithms can also make mistakes and fail to recognise legitimately used content such as parody. Further, the use of ambiguous terminology used in the final draft is likely to result in a lack of both legal and commercial certainty. If implemented it would be for the courts to flesh out the fine print. For example, should a court ever hold that licensing or filtering efforts are insufficient to satisfy “best effort”, sites could be directly liable for infringements as if they had committed them themselves.
When does this apply and what are the implications of Brexit?
On 26 March 2019, the European Parliament gave final approval to the Copyright Directive. If the UK leaves the EU with a deal, the directive would apply to the UK throughout any transition period. EU member states will be required to enact the Directive into national laws within two years.
What should you do next?
If you allow third parties to upload material to your website it is important that you check whether this proposed regulation would apply to you and in particular:
- check your website terms and conditions
- carry out due diligence on providers and the material supplied
- revise your contracts with image providers
- check you have an adequate insurance policy