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Viewpoints from the frontline of content.

Articles of interest

By Louise Popple 20-09-2018

The European Parliament has approved a revised version of the new Copyright Directive which, if formally adopted, will amend the EU’s online copyright laws.

The Directive has been the source of much debate with a number of high-profile individuals and businesses lobbying in favour and against it. The controversy surrounds Articles 13 (platform liability/use of upload filters) and 11 (right of press publication/’linking tax’).

Whilst rights holders hailed the vote as a victory, it may not have quite the impact originally promised. The amended version of the Directive has been watered down compared with previous drafts.

Nonetheless, it may give rights holders greater leverage in obtaining licence fees from certain platforms and aggregators who give access to their content. Although the Directive has not yet been finally approved, it is likely to be adopted largely in its current form.

Article 13 – What does it say?
Article 13 addresses the liability of platforms for content uploaded by users that infringes copyright. It says platforms that “store and give access to… a significant amount of copyright-protected works… which the [platform] optimises and promotes for profit…” are liable for any copyright infringements committed by their users.

What has not been widely reported is that this was effectively the position anyway.

Platforms, like VoD services, which merely host infringing content are not liable for copyright infringement, provided that, once alerted to an infringement, they act quickly to remove it. However, platforms that go beyond mere hosting (and, for example, optimise content) risk losing the benefit of this ‘safe harbour’ and being held liable.

The new Directive confirms that platforms which optimise content – whatever that means – are liable for any infringements. They must therefore obtain licences from rights holders if they wish to give access to copyright protected content. Absent a licence, platforms must “cooperate in good faith” with rights holders to ensure that unauthorised protected works are not available.

Importantly, however, cooperation does not appear to relieve platforms of liability. Guidelines will be issued setting out best practices for such ‘cooperation’ (which must ensure that the burden on SMEs remains appropriate and that automated blocking is avoided, among other things).

Non-commercial services, such as online encyclopaedia, are specifically excluded from the new regime, as are small and micro-enterprises.

Will it make a difference?
The amended Directive now only applies to a much narrower range of content providers who arguably already had potential liability for infringements. However, it may alter the balance to some extent in favour of rights-holders and mean such platforms cannot claim the benefit of the safe harbour and refuse to engage.

These content providers may now have to make a commercial decision as to what content to license and we may see new operating models as a result. We may also see an increased use of content-recognition technologies.

Critics argue that platforms will have no choice but to use upload filters if they are to avoid liability under the Directive (despite the Directive saying automated blocking is to be avoided). Whilst on a strict reading of the Directive some sort of filtering seems necessary, it seems possible that a filter, such as YouTube’s Content ID, which scans content after it has been uploaded, could be sufficient.

There might also be scope to argue for a more liberal reading of the Directive under which filtering is not necessary, or even to challenge Article 13 for lack of clarity. If filtering is necessary, the cost involved might squeeze out medium-sized platforms. It is also possible that some legitimate content such as memes and parodies will be filtered out, although the Directive provides mechanisms for end-users to seek redress.

Article 11 – What does it say?
Article 11 gives additional rights to press publishers when their news articles are used by others such as news aggregators.

It provides that they shall have  exclusive rights to reproduce and make available works they publish “so that they may obtain fair and proportionate remuneration for the digital use of their” works by online providers.

Critics call the provision a ‘linking’ tax. That is not strictly true as the use of “hyperlinks which are accompanied by individual words” is specifically permitted by the Directive. However, whether the sort of hyperlinking users of the internet are currently used to – where the headline and a snippet from the underlying article are also used – is acceptable is unclear. There is also an exception for private and non-commercial use of press publications by individual users which should allay fears that it will catch ordinary end users.

Importantly, the new provision does not affect authors and rights-holders who will not be deprived of their rights to exploit their works independently from press publications.

Will it make a difference?
This provision developed out of a perceived need to protect the investment content providers make in news, particularly with the regression of regional news reporting and rise in fake news. Critics, however, argue that the provision will force online providers to pay even just to link to news articles. This could squeeze out some of the smaller entities. They cite the failure of a similar law in Germany.

What else does the Directive cover?
The Directive contains other important provisions relating to revenue sharing for creators, rights of revocation for authors and performers for non-exploitation of works and automated image referencing services.

What next?
The Directive now goes back to an informal committee where further minor amendments are possible before a final vote of the European Parliament early next year. If approved, member states will have 12 months to implement the Directive.

Given the importance of the tech and media sectors to the UK, it is likely that the UK government will implement the law, at least in the short term, despite Brexit.

today's correspondent

Louise Popple Lawyer Taylor Wessing

Louise is a senior professional support lawyer in the IP and media group at Taylor Wessing, responsible for all areas of knowledge management.

Before becoming a PSL, Louise was a senior associate in the group specialising in trade mark and design portfolio management and disputes, format rights issues, anti-counterfeiting, and drafting and negotiating complex IP-related agreements. As well as being a solicitor, Louise is a qualified trademark attorney.