What are the main provisions set out in the new proposal of EU Copyright directive and what impact they will have on your operations?
From the date of release (i.e. 7 January 1972), the single “Changes” has been deemed David Bowie’s aesthetics and artistic manifesto. Lots of young people of different generations loudly have been singing these lyrics:
Turn and face the strange
Don’t want to be a richer man
Turn and face the strange
There’s gonna have to be a different man
Time may change me
But I can’t trace time
In the last few years, the EU institutions have proposed changes to several rules of the EU copyright legal framework that particularly concern the digital environment.
The Directive’s Proposal on Copyright in the Digital Single Market
As anticipated by Tommaso Ricci, on 12 September 2018, the EU Parliament approved several amendments to the EU Commission’s proposal for a Directive on Copyright in the Digital Single Market (the “Proposal“), that includes the new controversial rules on copyright in digital environments. The aim of the Proposal is to reform and harmonise domestic laws on copyright of the Member States in order to create a digital single market in the EU, i.e. to establish common rules to better protect creative works online.
Nevertheless, the Proposal raised questions and concerns on the effects that the new rules would entail for the Internet content. The most controversial provisions are
- article 11 of the Proposal, that sets out new rights for publishers, and
- article 13 that imposes the application of technical measures to prevent the unauthorized spread of copyright protected works without previously getting an appropriate licence.
Since there are lots of topics of discussions, it is hard to totally support or come up against the provisions of the Proposal. In this post, let’s impartially discuss both the pros and cons of the new rules.
Article 11 and the “Link Tax” rule
Article 11(1) (as lastly amended by the EU Parliament) states that
“Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers“.
This remuneration would amount to a sort of “link tax”, that is to say a remuneration for any preview or snippet published by information society service providers.
This rule is an attempt to balance the rights of the publishers (mainly, newspapers) with the ones of the new emerging digital platforms, like Google, Facebook, and Twitter. Indeed, the latter usually show and exploit news content through snippets and previews, without asking any permission and offering remuneration in return. The lack of revenues from digital content constitutes a serious problem for publishers, that already undergo the decrease in sales of paper copies of newspapers.
According to several commentators, the Proposal may threaten the free flow of data and information, which is a pivotal requirement of a democracy. Indeed, the new publishers’ rights would create broad ownership rights in news and other information, and such rights would be territorial (i.e. one for each Member State). The rights would be owned by institutional producers of news, such as the most important newspapers. Nonetheless, press publishers already have other property rights in their publications: for example, they could enforce the sui generis right in databases, since the definition of database according to the Directive 96/9/EC is broad enough to encompass newspapers.
Article 13 and the “Upload Filter” rule
Article 13 regulates the use of protected content by online content sharing service providers storing and giving access to large amounts of works. Article 13(1) (as amended by the EU Parliament) states that
“online content sharing service providers perform an act of communication to the public. They shall therefore conclude fair and appropriate licensing agreements with right holders.“
Furthermore, article 13 (2a) of the Proposal states that
“Member States shall provide that where right holders do not wish to conclude licensing agreements, online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services. Cooperation between online content service providers and right holders shall 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.“
This article requires that service providers should take appropriate technological measures to block the spread of copyright protected content where this activity is not subject to an appropriate licence, such as the Content ID technology already used by YouTube. This would certainly put a stop to users’ attitude of communicating digital creative works without seeking the authorization of the rightholder. Moreover, non-profit entities are not included in the scope of this rule, and would not suffer from an unjustified burden when promoting the flourishing of culture.
Someone believes that an “upload filter” rule would undermine the free spread of contents in digital environment, and so, legally speaking, the freedom of expression of the users. Filter technologies are not perfect, and may block not only infringing works, but also other works whose spread does not infringe the rights of the copyright holder, or that are parodic creations (e.g. memes).
The negotiations among the EU Council, the Parliament and the Commission may lead to modifications of the text released by the Parliament. But time flies, and in few time the Proposal will be a new piece of the jigsaw of the EU Copyright law. Then, ©hanges will become reality.