EU Parliament to Vote Tomorrow on Controversial Copyright Directive

BRUSSELS – The European Parliament is scheduled to hold its final vote tomorrow on its proposed Copyright Directive, which represent the first major overhaul of the European Union’s copyright rules since 2001.

The Directive has proven highly controversial, especially following the introduction of Articles 11 and 13, provisions which are hotly contested and interpreted in wildly different ways by supporters and detractors of the Directive.

Article 11, which many critics have taken to calling the “link tax,” is aimed at large platforms like Google and Facebook, which aggregate news headlines and often include short excerpts of those articles in linking off to the original source-article.

Under Article 11, reproducing excerpts of news articles will require a license, although the requirement “shall not apply in respect of uses of individual words or very short extracts of a press publication” and “shall not apply to acts of hyperlinking.”

The problem is, nobody is quite sure how a “very short extract” will be interpreted by the individual Member States of the EU – which is crucial, in that the Copyright Directive does not create new law in those Member States, it merely sets the framework within which the individual Member States will need to fit their amended copyright law.

Article 13 pertains to what the Directive terms “online content sharing service providers” (“OCSSP”) which the Directive defines 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 organizes and promotes for profit-making purposes.”

The Article’s definition of OCCSP explicitly excludes “not-for-profit online encyclopedias (and) educational and scientific repositories, open source software developing and sharing platforms, online marketplaces and business-to business cloud services and cloud services which allow users to upload content for their own use” and “electronic communication service providers as defined in Directive 2018/1972 establishing the European Communications Code.”

Under Article 13, an OCCSP is required to “obtain an authorization from the rightholders… for instance by concluding a licensing agreement, in order to communicate or make available to the public works or other subject matter.”

If an OCCSP fails to obtain authorization from the rightsholder, then the OCCSP “shall be liable for unauthorized acts of communication to the public of copyright protected works and other subject matter,” unless the OCCSP can show that they have “made best efforts to obtain an authorization” and “made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information.”

Making the “best efforts to ensure the unavailability of specific works” means, essentially, using the same kind of content-identification technology used by YouTube and other user-generated content platforms to assure works already identified as copyrighted material cannot be uploaded to the site/platform.

In addition to attempting to obtain authorization from the rightsholder and putting in place technical measures to prevent the upload of infringing material, OCCSPs are also required to act “expeditiously, upon receiving a sufficiently substantiated notice by the rightholders, to remove from their websites or to disable access to the notified works and subject matters, and made best efforts to prevent their future uploads.”

The Article also contains exceptions to the requirements for content published for “quotation, criticism, review,” and/or “use for the purpose of caricature, parody or pastiche” – carve-outs which resemble some of the “fair use” exceptions to copyright under U.S. law.

Last summer, a sizeable group of prominent internet and technology experts sent a letter to EU Parliament President Antonio Tanaji, expressing their concerns over Article 13. While the letter’s signatories said they “share the concern that there should be a fair distribution of revenues from the online use of copyright works, that benefits creators, publishers, and platforms alike,” they argued that Article 13 “is not the right way to achieve this.”

“By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users,” the signatories stated in the letter.

“Europe has been served well by the balanced liability model established under the Ecommerce Directive, under which those who upload content to the Internet bear the principal responsibility for its legality, while platforms are responsible to take action to remove such content once its illegality has been brought to their attention,” the letter stated. “By inverting this liability model and essentially making platforms directly responsible for ensuring the legality of content in the first instance, the business models and investments of platforms large and small will be impacted. The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.”

The Copyright Directive is not without its supporters. A group called “Europe for Creators” has voiced strong support for the Directive and for Article 13, specifically. The group terms much of the criticism of Article 13 to be “misinformation” and “noise,” and argue that the Article will “incentivize licensing solutions by which rights holders authorize platforms to store and give legitimate public access to the largest possible amount of content.”

“In practice this means more content available, with fair remuneration for creators, and no need to filter and remove content, as it will be authorized,” Europe for Creators stated in a post about Article 13. “Such licenses will also cover the activity of uploaders as long as they are not acting for commercial purposes.”