On 12 September 2018, the European Parliament approved the EU Copyright Directive. This marks significant progress for the proposed copyright reforms as the European Parliament previously failed to reach a consensus on them. There were two notable sticking points; one on ‘the link tax’ under article 11 and the other on ‘upload filters’ under Article 13. The substance of those two articles is discussed below.
The Link Tax (Article 11)
This article will entitle press publishers to receive remuneration from tech companies who link to the publisher’s stories without charge; in other words, a licence fee for sharing the story. This ‘link tax’ will not apply to individuals who share stories but is likely to affect providers of Apple News type services, for example.
In theory this seems fair but also seems out of touch with normal use the internet in current times – press publishers typically want to increase traffic to their stories to boost Google rankings or advertising revenues however the new laws may lead to fewer tech companies linking to them due to the fees. Additionally, press publishers will likely to have little incentive to negotiate ‘link taxes’ smaller tech companies particularly if they are looking to be critical of the linked story.
The Upload Filter (Article 13)
This article will require platforms to take “appropriate and proportionate action” to stop users uploading unlicensed copyrighted material. Suggested action under the EU Copyright Directive includes content recognition software which scans data uploaded to sites such as YouTube or Facebook for infringing material. (Currently, infringing material is taken down off these sites at the request of the copyright holder however shifts the onus directly onto the tech companies to remove infringing content).
The far reaching scope of ‘the upload filter’ means that memes (images or GIFs with an amusing caption, used widely across social media like the one below) based on some form of copyright protected material, such as a film still, may end up having to be censored and removed.
In reality, even if tech companies did employ sophisticated content recognition software, YouTube’s existing “Content ID” filter shows this isn’t a fix all solution. In 2012, Content ID famously removed NASA’s own video of Curiosity landing on Mars following accusations of NASA infringing its own material. Compositions by Bach, Schubert and Wagner (who all died in the late eighteenth to early nineteenth centuries and whose works are safely in the public domain) will almost certainly be removed from digital platforms if large companies unfairly claim copyright to those works.
Those against the EU Copyright Directive argue that the enforcement of content recognition software would amount to censorship and that memes and other parody material should be exempt under the doctrine of “fair use”.
Another argument against ‘the upload filter’ is that it may prohibit smaller tech players from competing against the likes of Google. Content ID, for example, cost around $60 million to create. The EU Copyright Directive does attempt to addresses this point through carefully defining “online content sharing service provider” however the length alone of this definition indicates the sheer complexity of determining who should be liable to stop users uploading infringing material.
What happens next?
The EU Copyright Directive faces a final reading in January 2019 before it becomes an official directive of the EU. If after that reading it is approved (it is unlikely at this stage that it will not be approved), then EU member states must adapt their laws to achieve the goals laid down by the EU Copyright Directive by the required implementation date – we will know this date if and when it is approved.