What does the latest version of the Directive say?The focus of the new law has been on the controversial Articles 11 and 13. The former requires payment to publishers by information society services providers (e.g. news aggregators) for sharing news articles. The latter requires sharing platforms featuring user-generated content to filter out copyright-protected works unless they have permission in the form of ‘fair and appropriate’ licensing agreements with the authors/creators for use of those works online. It also includes a ‘stay down’ provision requiring platforms to prevent unlicensed content resurfacing. Article 11 (known as the ‘link tax’) will not, however, apply to ‘snippets’ of news articles (e.g. individual words or very short extracts). Nor will it apply to non-commercial organisations like Wikipedia. Legislators have also clarified that Article 13 will not apply to cloud storage services or open source software platforms, which are automatically excluded from its remit and can still benefit from safe harbour protection. Various exceptions apply too, including use of materials for teaching and education, text and data mining and preservation of cultural heritage.
Reactions and criticismTech companies have been up in arms about the reforms, arguing that they are simplistic, will lead to prohibitively expensive obligations, threaten the free internet, and would result in blocking non-infringing content. This is because filter algorithms are not sophisticated enough to differentiate genuinely infringing material from legitimate use of copyright works (e.g. memes, GIFs, quotes, remixes and parody). However, Article 13 (renumbered to Article 17 in the latest text) has now been watered down so that it will not be unlawful to share or publish content for the purpose of ‘quotation, criticism, review, caricature, parody and pastiche’. Nevertheless, questions still remain over how realistic it is in practice to expect automated filter technologies to recognise these types of work. Much of the criticism has been aimed at the risk of the new law capturing unintended victims and ensuring that SMEs and smaller companies are not disproportionately targeted where curbing the big tech companies is the real objective. Some even argue that the laws will have a paradoxical reverse effect, by stamping out the competition as only the big conglomerates will have the resources necessary to fund the filtering technologies required, and will therefore be entrenched in their dominant positions. The filer obligations are targeted at large ‘online content sharing service providers’ (OCSSPs’) (e.g. Facebook, Instagram, YouTube and Google). Whilst all OCSSPs will be required to make best efforts to ensure the unavailability of unauthorised content where rightsholders have provided necessary and relevant information, only organisations operating for at least 3 years, with an annual turnover of EUR 10 million and at least 5 million monthly users will have additional responsibilities. These include making best efforts to obtain authorisation, acting expeditiously to remove any unauthorised content following a take-down notice and making best efforts to prevent future uploads. More detail is required though before it is absolutely clear how Article 13 will be enforced. Authors, musicians, journalists and other creative artists, on the other hand, are rejoicing. It looks as though the internet tech companies will no longer be able to reap huge profits off the back of their efforts without adequate remuneration. This ‘value gap’ will finally be addressed and artists will have better leverage to negotiate fair licence fees from web platforms that allow users to distribute their content.
What next?The reforms were backed by 348 votes to 274. Focus now shifts to the Member States to approve the decision (it could still be voted down), following which the Directive will come into force. It must then be transposed in each Member State’s laws within 2 years and that is when the final details will be established. If the UK has left the EU before the Directive is implemented, it is then up to us whether to adopt the same law. As with most things Brexit-related, it is unclear how this will play out but it would be surprising if we didn’t conform, as it would leave the UK’s internet laws very out-of-sync with the rest of Europe. To speak to the author of this article, Laura Symons, or for expert advice on any business legal matter please do enter an enquiry or call us today on: 020 7148 1066 and speak to a member of our friendly Client Care Team.
Journey further…Free 15 minutes IP consultation Free Intellectual Property Checklist Trademark Products
Read our latest blog posts on GDPR, featuring all the latest legal news, analysis and opinion from our expert lawyers.
- By Lawbite Team
- February 07, 2020
Whilst the law of trademarks can at times be a complex beast, this article is designed to answer some of the simpler questions we are frequently as...
- By Lawbite Team
- January 14, 2020
All businesses, without exception, own some form of intellectual property. Strong Intellectual Property portfolios add tremendous value to a compan...
- By Lawbite Team
- October 23, 2019
One might think that New Zealand is a land of cultural sensitivity and respect, but the recent case of the country’s national airline, Air New Zeal...
LawBite can help you
LawBite is on a mission to provide business legal advice that is easier to access, clearer to understand and much cheaper. Our on-line legal advice platform can quickly connect you with expert business legal advice. Our friendly, highly qualified business lawyers, solicitors and mediators will give you the guidance and reassurance that comes from customised legal advice for small and medium sized business.
Whether you are bringing or defending a legal claim, outsourcing work, want a business contract review to ward off disagreements, talk to an expert trademark lawyer, resolve a contractual dispute with methods like mediation and arbitration, or getting your new company set up and on the right footing with a robust shareholder agreement and GDPR standards, we can help you succeed.