Warnings issued over controversial copyright law in wake of European Parliament approval

• European Parliament votes to approve controversial new copyright directive
• Adopted text remains divisive; warnings over “unintended consequences”
• EFF calls on EU netizens to organise and challenge the directive in court

The European Parliament voted yesterday in favour of the new Copyright Directive, which has been the focus of intense lobbying. Reaction to the result has been as fierce and divided as the lobbying efforts in the run-up to the vote. So what does it actually mean for platforms and content creators?

The directive had three stated priorities – better choice and access to content online and across borders (focused on the portability of online content); the improvement of rules on research, education and inclusion of disabled people; and creation of a “fairer and sustainable marketplace for creators and press”. In terms of the latter, there has been significant pushback in some quarters, with a number of platforms fearful that the directive will impose greater obligations and liabilities on them.

In this respect, the focus was Article 13 which addresses scenarios where an online content-sharing service provider gives access to copyright-protected content uploaded by its users. Under the text adopted by the European Parliament, user-uploaded content platforms covered by the rules are considered to be carrying out acts covered by copyright for which they need to obtain an authorisation from the right holders concerned. Where there is no licensing agreement in place, platforms will need to make best efforts to obtain an authorisation and ensure the unavailability of unauthorised content regarding which right holders have provided necessary and relevant information. They also need to act expeditiously to remove any unauthorised content following a notice received. Additionally, the new ‘press publishers' right’ is aimed at strengthening the bargaining position of press publishers when they negotiate the use of their content by online services, with the aim of ensuring that journalists/media outlets receive an “appropriate share” of the revenues generated by their work.

Following yesterday’s vote, European Parliament moved to quell some of the fears surrounding the directive. For instance, it noted that the use of memes and other content generated by users “for purposes of quotation, criticism, review, caricature, parody and pastiche” are specifically allowed. It also states that “sharing snippets of news articles is specifically excluded from the scope of the directive, it can continue exactly as before… the ‘snippet’ can therefore continue to appear in a Google News newsfeeds, for example, or when an article is shared on Facebook, provided it is “very short”.” Additionally, uploading works to online encyclopedias in a non-commercial way, such as Wikipedia, or open source software platforms will automatically be excluded from the scope of the directive.

However, while the text has evolved it remains divisive. For example, YouTube issued a statement yesterday characterizing the adopted text an “improvement” on previous versions, but warned over the “unintended consequences” of Article 13.

The text itself will now need to be formally endorsed by the Council of the European Union in the coming weeks. Once published on the Official Journal of the EU, Member States will have 24 months to transpose the new rules into their national legislation. While not a trademark-focused directive, many of WTR’s readers will have skin in the game - either as content creators, online platforms or advisors to the former. Therefore, below we present some of the reaction to yesterday’s vote.

Gadi Oron, director general of the Confédération Internationale des Sociétés d'Auteurs et Compositeurs (CISAC): 

The European Union has laid the foundation for a better and fairer digital environment - one in which  creators will be in a stronger position to negotiate fair license fees when their works are used by big online platforms. This is a hugely important achievement not just for Europe, but for the millions of creators which CISAC represents across the world. We are grateful to all those in the European institutions who have tirelessly worked on this directive and hope that it will lead the way for countries outside the EU to follow.

Rohan Massey, global head of privacy and cybersecurity at Ropes & Gray:

The decision, which follows intense lobbying from campaigners on both sides of the tech divide, takes a significant step towards redrawing the European copyright landscape. By requiring that online platforms remove or filter copyrighted material from their sites and holding them liable for copyright infringements, the costs of doing business for platforms and aggregation sites will increase — potentially at the expense of the smaller players.

Frances Doherty, partner at Dorsey & Whitney:

The final approved text of the directive has been amended to address some concerns raised; including subjecting start-ups to lighter regulation and permitting the sharing of hyperlinks to news articles accompanied by individual words or short extracts. However, care will need to be taken to ensure that smaller players are not negatively impacted by the new rules which ultimately have been designed to limit the powers of tech giants. Attention is now likely to turn to the detailed implementation of the directive at a national level and the interpretation taken by member states with some of the tech giants already looking ahead to the discussions to be had there.

Alastair Shaw, counsel, and Morten Petersenn, partner at Hogan Lovells:

Focusing on what was Article 13 (now Article 17), the final version of the directive leaves a lot of question marks. It includes a provision that the Commission must issue guidance on the application of, and specifically the limitation of liability regime. This practice-oriented document will be interesting, as it should contain more precise suggestions of technical solutions to comply with the limitation of liability regime but it will not be binding on the CJEU, leaving uncertainty for both content sharing platforms and rightholders. We expect that national Courts and ultimately the CJEU will have to answer a number of questions, including, in particular, what amounts to “best efforts” in relation to the various obligations on content sharing services and also precisely which services fall within the definition of an online content sharing service.

Raffaella De Santis, associate at Harbottle & Lewis:

Artists and creators will hail the passing of the directive as a real victory for their right to be fairly paid for their creations. However, the effect of the text of the directive as passed could at the same time have very concerning and unintended consequences for vast swathes of online services, not simply those operating in music or news. This outcome is unpopular with digital services and importantly, many European voters. The key focus now will be on how the directive is implemented across the EU over the next two years, and care will need to be taken to ensure that smaller services are not disproportionately disadvantaged by measures which are in reality designed to curtail the formerly unchecked power of the tech giants.

Danny O'Brien, Electronic Frontier Foundation:

In a stunning rejection of the will of five million online petitioners, and over 100,000 protestors this weekend, the European Parliament has abandoned common-sense and the advice of academics, technologists, and UN human rights experts, and approved the Copyright in the Digital Single Market directive in its entirety… We can expect media and rightsholders to lobby for the most draconian possible national laws, then promptly march to the courts to extract fines whenever anyone online wanders over its fuzzy lines. The directive is written so that any owner of copyrighted material can demand satisfaction from an Internet service, and we’ve already seen that the rightsholders are by no means united on what Big Tech should be doing. Whatever Internet companies and organizations do to comply with twenty-seven or more national laws – from dropping links to European news sites entirely, to upping their already over-sensitive filtering systems, or seeking to strike deals with key media conglomerates – will be challenged by one rightsholder faction or another… EU netizens will need to organize and support independent European digital rights groups willing to challenge the directive in court. And outside Europe, friends of the Internet will have to brace themselves to push back against copyright maximalists attempting to export this terrible directive to the rest of the world. We must, and we will, regroup and stand together to stop this directive in Europe, and prevent it spreading further.