The new Directive’s objective
The Directive intends to update existing copyright laws for the internet age. The work on the Directive began from the observation that IP’s monetisation across the internet has massively increased in the past few years.
More specifically, the Directive’s goal is to limit how copyrighted material is used and shared online. Platforms will have greater responsibility to ensure that the material being used on them does not violate copyright. Platforms such as YouTube and Facebook extract huge profits from the exploitation of content while currently they do not have any responsibility for copyright infringements taking place on their platforms (other than to remove the content when it is brought to their attention). The new measures are intended to increase online platforms’ and news aggregators’ responsibility to prevent unauthorised publications on their sites of copyright-protected material.
One of the Directive’s controversial sections concerns the heavily-commented Article 13. This article seeks to make platforms responsible for taking down infringing material. There were many discussions about how exactly the platforms will have to identify and remove infringing materials.
According to the political agreement reached on 13 February 2019, the platforms covered by Article 13 are considered to be carrying out acts covered by copyright and therefore they need to obtain an authorisation from the right holders concerned when hosting copyright-protected material. In situations where there are no licensing agreements, the platforms will have to take certain actions if they want to avoid liability.
More specifically, the platforms have to: (i) make best efforts to obtain an authorisation, (ii) make best efforts to ensure the unavailability of unauthorised content for which right holders have provided necessary and relevant information, and (iii) act expeditiously to remove any unauthorised content following receipt of a notice and also make best efforts to prevent future uploads.
Newer and smaller platforms will benefit from a lighter regime, which will apply to online service providers that: (i) have less than three years of existence in the Union, (ii) have a turnover of less than 10 million euros, and (iii) have less than 5 million monthly users. To avoid liability, such newer, smaller platforms will only have to prove that they have made their best efforts to obtain an authorisation and that they have acted expeditiously to remove the infringing content notified by right holders.
Article 13 only applies to online content sharing service provider, defined as a provider of an information society service whose main or one of the main purposes is to store and give the public access to a large amount of copyright protected works or other protected subject-matter uploaded by its users which it organises and promotes for profit-making purposes.
According to the directive, “providers of services such as not-for profit online encyclopedias, not-for profit educational and scientific repositories, open source software developing and sharing platforms, electronic communication service providers, online marketplaces and business-to business cloud services and cloud services which allow users to upload content for their own use shall not be considered online content sharing service providers within the meaning of this Directive”.
Furthermore, uploading protected works for purposes of quotation, criticism, review, caricature, parody or pastiche has been confirmed as not being an act of infringement, ensuring that memes and Gifs will continue to be freely available (and shareable) on online platforms. These provisions were not in themselves necessary in the sense that the directive will not be creating any new rights for rights holders.
News aggregator sites’ responsibility
Further sensitive issues surround Article 11, which is intended to make news aggregator sites pay publishers for content used in the articles they post on their platforms.
Article 11 does not cover use of individual words and very short extracts, which the Commission has stated means that “information society service providers will remain free to use such parts of a press publication without requiring an authorisation by press publishers”.
As this issue is very sensitive for various industries, it will be interesting to see how the rules will be enforced in practice.
In general terms, the Directive contains five different measures to strengthen the position of authors and performers:
- A principle of appropriate and proportionate remuneration for authors and performers;
- A transparency obligation that aims to help authors and performers have access to more information about the exploitation of their works;
- A contract adjustment mechanism to allow authors and performers to obtain a fair share when the remuneration originally agreed becomes disproportionately low compared to the success of their work;
- A mechanism for the revocation of rights allowing creators to take back their rights when their works are not being exploited; and
- A dispute resolution procedure for authors and performers.
Exceptions to copyright
The Directive will also adapt the EU framework on exceptions in order to take into account the digital uses in certain areas like education and research. It introduces the following four mandatory exceptions for:
Text and data mining (TDM) for research purposes;
A general TDM exception for other purposes;
Teaching and educational purposes;
Preservation of cultural heritage.
The aim is to open up the options that digital technologies offer to research, data analytics, education and heritage preservation.
The agreement still has to be confirmed in plenary by the European Parliament and the Council in the coming weeks.
Even though the Directive seems to be based on sound principles, it appears that there is still some way to go before the Directive can deliver on what it aims to do.