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Updates to the European Copyright Directive have sparked a lot of debate online and would have a range of consequences for content creators and users if rolled out as currently planned.

We discuss the main points of contention in Articles 11 and 13, and look at what the EU Copyright Directive could mean for you once it passes into law across EU member states.

What’s happened so far?

As of 13 February 2019, the European Parliament, Commission and European Council negotiators reached political agreement on the final text of the European Union Directive on Copyright in the Digital Single Market (a.k.a. the EU Copyright Directive) as part of the “trilogue” process (more on that below). This text is subject to a final vote by members of the European Parliament over the next month, prior to elections for new Members of the European Parliament (MEPs) in May 2019.

This finalization of the text follows a European Parliament vote on 12 September 2018, which passed updates to its negotiating position on the EU Copyright Directive with 438 votes supporting the changes, 226 against and 39 abstentions.

Updates to the EU Copyright Directive aim to guide EU member states on regulating how content is shared and copyright is protected online, attempting to balance the rights of content creators and content users. Once finalized, the updated Directive will provide overarching copyright rules for the European region. Each member state will need to pass their own domestic legislation to uphold the articles of the Directive in their jurisdictions.

The Directive aims to make content sharing platforms take responsibility for recompensing content creators and managing copyright infringements that can occur on their platforms. The European Commission put together a one pager, fact sheet and FAQs on the aims of the copyright reforms through the Directive here.

The EU copyright rules under the Directive would only apply to platforms operating and being accessed within Europe, however many critics argue the proposed changes would result in platforms filtering content worldwide in order to comply with the rules under the current wording. (Wired’s Klint Finley discusses this further here).

Under the final Directive text for Article 13, platforms would need to make “best efforts” to get permission from the copyright owner or obtain licenses for content that users may upload. If a rights holder has made the platform aware of their copyrighted material, steps must be taken to remove the content and prevent future infringements.

A number of amendments and exceptions were added during negotiations on the Directive text, showing tensions between EU member states and key players in the tech industry. Millions of European constituents are also actively lobbying against the Directive due to fears that Articles 11 and 13 could inhibit free speech and open sharing across the web.

The EU Copyright Directive has now passed through the trilogue process, which involves negotiators from the European Parliament, Commission lawmakers and European Council member state governments agreeing final wording of the Directive text.

The Directive bill will now go back to the plenary of the European Parliament for a final vote by MEPs.

The UK Copyright and Creative Economy Centre at the University of Glasgow gives a breakdown of the process to date.

Articles 11 and 13 have the greatest implications for content creators and users online, so we give more detail on these below.

What’s Article 13?

Some refer to Article 13 as a “meme ban”, as they feel there’s a risk if online platforms are required to stop infringing content being shared by their users, this could involve using filters to block copyrighted content from being uploaded in the first place. (The BBC provide an overview of Article 13 here).

While this may have been considered an option earlier in the process, amendments to the text passed in September included an exception that clarifies “the burden on SMEs remains appropriate and that automated blocking of content is avoided.” The European Parliament’s press release explicitly states the Directive will not impose filters, and says Gifs and memes will continue to be shared.

Article 13 clarifies that parts of copyrighted material may still be used on content sharing platforms for purposes of criticism, review, parody or pastiche, which can be seen as applying some fair use principles to individual users posting content online.

Key tech industry players maintain that the only way to uphold Article 13 would be through introduction of filters to ensure platforms are not liable for the range of potential infringements on their platforms.

While the practical application of Article 13 for online platforms remains to be seen, a compromise may be for processes dealing with infringements to be improved without blocking content uploads from the outset. It’s important for a balance to be struck between ensuring copyright owners have more control over how their work is used, whilst still allowing individual users to access that content.

There are also concerns around the types of platforms which would be subject to Article 13. The emphasis is on for-profit platforms, with non-commercial sites such as Wikipedia and GitHub being excluded from application of Article 13. The final text has an exception that companies operating for less than three years and earning less than €10 million a year (US$11.2 million or £8.8 million) would be exempt from Article 13. This has driven further opposition to the Directive, given many platforms operating for more than three years do not earn in the range of millions of euros.

Internet users and tech industry players will keep lobbying European MEPs to avoid the Directive resulting in a complete upheaval of the ways in which content is shared and consumed online. More detail on next steps is below.

What’s Article 11?

Article 11 has been referred to as the “link tax”, as this relates to news aggregator sites having to recompense publishers when their articles are shared through their platforms for commercial purposes. It’s unclear where the line will be drawn on how much of an article would require payment, or which types of uses, as the Directive text indicates snippets may be used linking to articles, but only if “single words of very short extracts” are included with the link.

Aside from the lack of clarity of the Article wording, some feel the lines could be blurred on who would be responsible for paying if an article is shared.

Current wording of the Directive indicates that the service provider would be responsible if an article is shared beyond the title and some “single words”. At this stage it seems private non-commercial use of an article by an individual user would not require payment.

As Wired’s Matt Reynolds points out in his article on the Directive however, when an individual user with a substantial following and presence shares content, could this fall into the remit of a “link tax”?

How could this affect my work as a creative?

If the EU Copyright Directive were passed by the European MEPs as it’s currently worded, the changes could result in your content being shared and accessed less widely or often. This could be a double-edged sword as it means you would face less infringements, but equally would have less channels through which your work can be promoted.

Watch this space

In order to roll out copyright reform of this scale across Europe, there will continue to be lobbying and extensive discussions of the implications of the final Directive text on how online content is consumed the world over.

However the EU Copyright Directive is finalized, all parties need to be prepared to find the most workable options for implementing the changes, with as few adverse consequences for content creators or consumers as possible. At this stage the ways in which online platforms will have to act to comply with the changes are unclear as these remain unspecified in the Directive text. (The Next Web’s Már Másson Maack discusses this further here).

It’s important that government frameworks catch up with how people are using and engaging with content online. The overarching philosophy of the EU Copyright Directive in aiming to uphold the rights of creators so that they’re fairly paid for their work is a noble aim in theory.

The question is how this can be regulated and managed to ensure creatives are empowered whilst still reaching their audiences.

Government can aim to bring the principles of intellectual property and copyright into the 21st century, but it’s up to industry to be more proactive in recognizing that their platforms are powered by creative content, and they need to take steps to make sure copyright owners can manage how their work is shared online. This includes finding ways for creatives to be appropriately credited and recompensed when their work is used through these platforms.

Active monitoring of image uses online through a service like Pixsy can enable creators to take action on unauthorized use of their imagery by commercial enterprizes and organizations. This provides an alternative to filtering content before it is uploaded in the first place.

What’s the process from here?

The final Directive text from the trilogue process goes to the European Parliament’s Legal Affairs Committee for approval this week. The EU member state governments then vote in the European Council. There would need to be enough countries representing at least 35% of the European population voting against the Directive to halt the text at this stage of the process.

After the European Council’s confirmation, the Directive will go to a final vote in the plenary of the European Parliament. If passed by a majority of MEPs, EU Member States would have two years to pass domestic legislation implementing the Directive.

Opponents to the Directive such as German MEP, Julia Reda, of the Pirate Party Germany, believe the European Parliament plenary vote is where the Directive could be halted. MEPs could either vote against the bill entirely, or make changes such as removing contentious Articles 11 and 13. The text would then have to be reconsidered by the European Council, which could result in delays until after the European Parliament elections in May. The Directive would then be finalized in a later legislative session with a new batch of MEPs.

The proximity of the final vote on the Directive with the European elections themselves will make for interesting campaigning and lobbying from European constituents as the position of MEPs on Articles 11 and 13 could be a game changer.

Key tech industry players and millions of EU constituents continue to lobby against the articles of the Directive.

The Computer & Communications Industry Association, which includes members such as Google, Facebook and Amazon, is engaging with the US Trade Representative on the EU’s targeting of US firms through Articles 11 and 13, arguing the Directive will impact their competitiveness. (A copy of their comments is here if you’d like to read in full.)

The Electronic Frontier Foundation discusses how close to five million Europeans have signed a petition against the Directive here, the largest of its kind in European history and the second-largest petition worldwide.

It remains important for content creators and consumers to monitor how the Directive will be rolled out over time, however the deciding factor will be once EU member states pass domestic legislation to implement the Directive, and judges start interpreting what “best efforts” by online platforms in preventing infringements really means for copyright cases in Europe.

Summary

  •        Final wording of updates to the European Union Directive on Copyright in the Digital Single Market were agreed on 13 February 2019. This will now go to the European Parliament for a final vote before May.
  •        Article 13 has been called a “meme ban” because it could involve content sharing platforms having to use filters to block copyrighted content from being uploaded.
  •        Article 11 has been called a “link tax” because it could require news aggregator platforms to pay publishers when articles are shared for commercial purposes.
  •        If implemented with the current wording, the Directive could result in your content being shared and accessed less widely or often.
  •        Key tech industry players and European constituents are lobbying MEPs to vote against Articles 11 and 13, so we’re a few months away from knowing how the Directive will be implemented.