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Copyright Controversial Law Passed – Winners and Losers

September 14, 2018

Good news on copyright if you’re a content creative but potentially bad news for SMEs who currently use others’ content online and cannot afford the expensive tech solutions necessary to ensure that they remain compliant with the new Copyright Directive. Earlier this summer we reported here on the draft proposal of a new Copyright Directive which had been creating quite a stir among content creators and online sharing service platforms.

Making online platforms more accountable – Bad news for the Big Players and SMEs

By way of a reminder, one of the main aims behind the new law was to reward creators and copyright holders more fairly for the online use of their works. This is through putting the onus on websites to police and enforce copyright on user-generated content. Ultimately, this will make life more difficult for the likes of Twitter, Facebook and other big platforms but will also impact smaller publishers and SMEs which make available large amounts of user-generated copyrighted content for profit-making purposes.

If these platforms are unable to negotiate licence agreements with the artists for the use of their content, they would essentially be expected to block the availability of those works on their site. Critics argue that these fundamental changes in how content is handled would come at a huge cost and administrative burden to tech providers and that the necessary content recognition systems and upload filters could not be reliable when applied to such vast quantities of information.

Results of the latest vote

Due in part to this backlash, the draft proposal was rejected on 5 July by the European Parliament. Put to the vote again on 12 September 2018, the legislation has now been approved (by 438 votes to 226, with 39 abstentions), albeit with various changes to the originally proposed text.

Among these changes is welcome clarification that cooperation between online content service providers and right holders should not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright (e.g. permitted quotations or parodies).

The changes also include the fact that providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online marketplaces whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of the Directive.

Finally, amendments to the new provisions obliging online platforms to pay for linking to news also clarify that it should not prevent legitimate private and non-commercial use of press publications by individual users, and should not extend to mere hyperlinks which are accompanied by individual words.

What happens now? The Brexit effect

Although the process has been set in motion, the new law will not be enacted immediately. Negotiations will now take place between the European Parliament, the Council and the European Commission to try to reach a compromise on the final text of the Directive. This may take some time yet and we will keep you posted as to any future developments, including on how Brexit may affect the UK’s implementation of this landmark reform if it is not yet in force by that deadline. This will be part of our ongoing provision of free resources to our client and partner network on the developing Brexit scenarios. We recently provided a detailed explanation of how start-ups and SMEs should consider trademark registration with Brexit looming.

What is clear, however, is that online platforms will need to start giving some serious thought to the ways in which their business practices will need to change to accommodate this new development and identify and take down infringing material.

For further legal advice, you can contact the author of this article, IP expert LawBrief Laura Symons. To buy the right Trademark product for your business please enter an enquiry or call us today on 020 7148 1066 to speak to a member of our friendly Client Care Team. LawBite can deal with all aspects of intellectual property law and provides fixed-price no-obligation quotes too.

Lawbrief Laura


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