On 12 September 2018, the EU Parliament voted to adopt the latest draft of the proposed EU Copyright Directive, some two months after an earlier, controversial draft was voted down. Despite the overwhelming majority vote, the current draft is still mightily controversial.

Supporters of the proposed law say that it will enable creators to be properly rewarded for their work and will ensure that sites such as Google, YouTube and other big tech firms share revenue with artists and writers fairly. Indeed, the President of the European Parliament tweeted that the vote showed that “the European Parliament has chosen to defend European and Italian culture and creativity, putting an end to the digital wild west.”

However, there is a very vocal opposition to the proposed law, primarily focussing on two specific Articles (11 and 13) which critics say will be ineffective and, worse, will have a disastrous effect on the freedom to exchange information on the Internet. Do they have a point?

The Link Tax

Article 11 is often described as imposing a “link tax” because it provides a right to press publications in relation to digital use. The original language of the Article (voted down in July) specifically stated that the rights provided to press publications were so that they could obtain appropriate remuneration from “Information Service Providers”.

Essentially, the original draft imposed an obligation for any Information Service Providers to pay every time they used digitally any press publication. This has been interpreted by some to include any link to any news story presented by news aggregators, such as Google News. The motive behind the provision is fair enough – to ensure that those that invest time and money in producing content should be fairly compensated when other sites use that content. The concern was that it could be interpreted broadly so that anyone linking to any press publication could be liable to pay for such links. This could conceivably include sharing a link on Twitter, Facebook or other social media platform.

The new draft does not mention any payment obligations by Information Service Providers. What it does say is that “publishers of press publications” have rights in the digital use of their press publications. There are a number of things which are still, however, unclear about Article 11.

Who are publishers of press publications? As we all know, the lines between traditional journalism and Internet commentary have become (and will continue to be) blurred. If I publish a blog post about a newsworthy event, does that make me a publisher of a press publication? If so, I could be prevented from writing a story that links to online newspaper reports. This provision could be construed extremely broadly.

What does it mean to “digitally use” a press publication? Although the Article does not specifically mention hyperlinks, this could conceivably be a reasonable interpretation of this claim. It is said that the law is not intended to prevent mere links but if a link contained a snippet of information from the original content, could this be a breach? Think about how commonplace this is on the Internet, and not just by sites such as Google News. Most online content, even from “press publications”, include some links to other content. Will they have to pay for the right to do this?

Theoretically, therefore, the impact of this Article could be to prevent any link to any content published online. It is easy to see how this could severely impact how consumers use the Internet and social media to obtain and disseminate information.

One can only hope that the Court of Justice of the European Union takes a sensible approach to the interpretation of this Article, when a case finally comes before it, so as to maintain a proper balance between protecting rights owners and protecting the way in which people currently use the Internet.

Meme Outlawing

Article 13 states that Information Services Providers shall “take measures to ensure the functioning of agreements concluded with rights holders for the use of their works … these measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate”.

Again, this can be interpreted very broadly such that it imposes an obligation on any Information Service Provider to prevent any and all uploading of any infringing material by the use of filtering (or content recognition technologies). This is why some have argued that this Article would effectively kill ‘memes’ which invariably use third-party copyright material (photos, gifs, etc.).

There is also the issue that current filtering technologies may not be up to the task of discriminating between what is infringing material and what is not. For example, some content recognition technologies have already refused to allow uploading of bird song (something which cannot be protected by copyright). There are other complications. Say I upload a picture to Twitter that I have taken on holiday. In the background is a restaurant with a logo that is protected by copyright. Will the filter prevent this upload? Technically speaking, under the new proposed law this would be possible, but is it right?

It is true that many content owners and creators are extremely disadvantaged financially when their content is disseminated freely online without any remuneration being made to them. However, if the law is interpreted broadly, it could potentially have a significant impact on the ability of users to upload fairly harmless content to social media or other online avenues.

The words “appropriate and proportionate” are, therefore, clearly critical here. Again, it can only be hoped that the courts interpret these words having proper regard to all relevant matters including the legitimate rights of creators, current limitations to content recognition technology, how people use the Internet and any defences to copyright infringement (such as parody and fair dealing).

What Happens Next?

The current draft is not set in stone. There will now be discussions between select members of the EU Parliament, the EU Commission and member states to refine the draft, with a final vote expected sometime in Spring 2019. There is every possibility that the wording of these Articles will be changed once again, so stay tuned for further updates.

This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.