It’s a done deal: Modernization of the EU copyright rules

On 15 April 2019, the Directive on Copyright in the Digital Single Market, a.k.a. the EU Copyright Directive, was approved by the Council of the European Union.

As the European Commission emphasizes (please see https://ec.europa.eu/digital-single-market/en/modernisation-eu-copyright...), the new Directive should support “creating a Digital Single Market” and “bringing down barriers to unlock online opportunities”. The aim is to provide EU copyright rules that fit to the digital age.

The main goals are:

•    better access to online content and across borders, 

•    improved copyright rules for education, research, cultural heritage and inclusion of disabled people and

•    a fairer online environment for creators, the press and a well-functioning marketplace for copyrights.

The EU member states now have two (2) years to implement the reform into national law. 

1. Draft Article 13 of the Directive under cross-examination

The approval of the Directive results  from previous heated debates, in particular about Draft Article 13 (which will be Article 17) of the Directive which deals with the “use of protected content by online content-sharing service providers”. Critics fear that this rule – which is exclusively directed to for-profit platforms like YouTube or Facebook – will force commercial platform operators to implement “upload filters” on their websites resulting in a censorship and a violation of the freedom of speech. 
More than 5,000,000 signatures were gathered and resulted in a petition against Article 13, the largest in EU history. By demonstrating on the streets, particularly in Germany, 200,000 protesters ensured that their concerns became impossible to ignore – and nevertheless, the reform passed.

2. Content of Draft Article 13 in a nutshell

Draft Article 13 clarifies initially that certain platforms that rely on user-uploaded content are not just hosts, but that they are “performing an act of communication to the public or an act of making available to the public” – in other words: that they are using the content uploaded by the users by themselves in a way which may be subject to copyright law. 

Therefore, according to Draft Article 13 they are – first and foremost – required to negotiate license agreements with rightholders. If the provider obtains such authorization, for instance by concluding a licensing agreement, the regulation provides that that authorization shall also cover acts carried out by non-commercial users. This is huge for ordinary (non-profit) users as their use of any copyrighted material is covered by deals which have been negotiated between the online content provider and the rightholder. 

Only if no authorization is granted, online content-sharing service providers shall according to Draft Article 13 be liable for unauthorized acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless they can demonstrate that they have 

“(a) made best efforts to obtain an authorization and 

(b) made, in accordance with high industry standards (…) best efforts to ensure the unavailability of specific works (…) for which the rightholders have provided the service providers with the relevant and necessary information; and in any event 

(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the right holders, to disable access to, or to remove from, their websites the notified works (…) and made best efforts to prevent their future uploads in accordance with point (b).”

Popular belief is that such “best efforts to ensure the unavailability of specific (unlicensed) work” can in fact only be upload filters. However, this section of Draft Article 13 holds platforms accountable only in the absence of a deal with the rightholders and, in addition, provides some exceptions: if the platform providers have proven they have made a real effort to get a license and stopped users from accessing unauthorized content. In practice, it shall mean that if a rightholder refuses to conclude a license agreement with the platform provider, then the two parties have to work together to make sure that those works are not made available on the site. While platform providers need to be able to identify specific copyright protected content for which rightholders provide relevant information, there is no obligation for platform providers to put upload filters in place. In fact, it is even questionable whether randomly used filters would help stopping unlicensed content from being posted.

In addition, according to Draft Article 13, the obligations of online content sharing service providers will be proportional to their size, means and business models as well as to the type of content which is uploaded by the users. Start-ups will under certain conditions benefit from a smart and special exemption during their first three years. They will only have to make best efforts to obtain licenses from rightholders and to remove unlicensed work notified by rightholders. There is no stay-down obligation for start-ups falling under this Article.
As a consequence of the heated debates and protests against Article 13, the wording of the regulation now provides that Member States shall ensure that users in each Member State are still able to rely on quotation, criticism, review or the use for the purpose of caricature, parody or pastiche as existing exceptions when uploading content generated by users. This section should safeguard freedom of speech and protect from automated blocking. 

It is also fixed that the application of Article 13 shall not lead to any general monitoring obligation – service providers do not need to implement global monitoring of any and all content which is uploaded by users. However, platforms have to ensure that they are transparent about their rules and practices regarding cooperating and licensing and that they are able to provide rightholders, at their request, with respective information.

3. Comment to Draft Article 13

The Directive in general and Draft Article 13 strengthens the rights of the creators as the rightholders. This is to be highly welcomed. Therefore, the Directive has widely been supported by newspapers, publishers, and media groups.

Due to Draft Article 13 and its alleged violation of the freedom of speech and due to its alleged heavy consequences for platform providers, the Directive has been opposed by major tech companies and Internet users, as well as human rights advocates.

However, the Directive in its final version provides a fair and balanced exceptional-law-principle, which does in the end in fact not force platforms to use upload filters (an expression which is not even used by the wording of the Directive). The Directive highlights repeatedly that a “Big Brother”-style monitoring is not the aim of the work. In addition, the special situation and specific interests of small enterprises and, in particular, start-ups are considered.

After weighing the interests of all parties and also taking into consideration the concerns of the rightholders whose rights will be strengthened, Article 13 in its current form is to be welcomed.

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