In this digital age, user-generated content has become a primary source of information and entertainment. Unfortunately, the lack of online regulation has enabled widespread copyright infringement which consequently diminishes the value of this intellectual property right. To combat this, the European Parliament recently voted in favour of modernising the EU Copyright Directive. In their view, these amendments are critical to meeting the demands of the digital single market and the internet age.
The reform aims to ‘bring tangible benefits for EU citizens, researcher, educators, writers, artists, press and cultural heritage institutions and to open up the potential for more creativity and content by clarifying the rules and making them fit for the digital world.’ While it is generally agreed that the sharing of online information needs to be regulated and harmonised amongst member states, we believe the suggested amendments are counter-productive to the growth of the digital single market. In particular, Article 11 and 13 are particularly detrimental.
Article 11- The Link Tax
Article 11 gives publishers the right to ask for paid licences when their content is shared on online platforms such as Google, Facebook etc. These platforms currently scrape articles from other sites to display ‘snippets’ of the text with headlines, pictures, and a blurb of the original article. By scraping external content, these platforms take advantage of the user traffic which the original sites would have attracted. It is argued that the original site does not benefit from this practice in any way as users are unlikely to click through to the original content. A link tax would therefore prevent online platforms from using external content without a licence from the content creator.
Article 13- The Censorship Machine
Article 13 states that online platforms must monitor the content uploaded by their users to ensure that they are not uploading content that violates copyright laws. “Information society service providers” will be held liable for any copyright infringements committed by the users on their platform. To prevent this, they would need to filter out any shared videos, music and images of their users that have copyright violations.
Member State Responses
The amendments above will have to be transposed into the laws of each EU member state. This means that wherever the copyright infringement occurs in terms of Article 11 and 13, the law of that specific member state will be applied.
As seen below, member states have differing opinions on the benefits and practicalities of the amendments. While countries including Finland and Netherlands are against the new amendments, France and Spain are strong proponents of this Directive.
Various creative industries strongly support the new Directive. For instance, record labels are looking forward to receiving compensation on the indiscriminate use of copyrighted music across websites. With the rise of influencer culture and ‘reactions/criticisms’ or ‘remixes/covers’ videos, the amount of content containing copyrighted music has grown exponentially. Under these new amendments, Youtube would need to reimburse artists when users upload their music online without permission.
These amendments have also been praised in other creative industries. For example, Stephen Lotinga of the Publishers Association believes that the new amendments will ensure that “creators and rightsholders are rewarded fairly for their endeavour”. Giles Clifton of Booksellers Association expressed approval for the new amendments, citing them as a “vote for common sense”.
However, it is observed that the large majority of companies disapprove of the new Directive as it has the potential to hinder knowledge transfer and stagnate innovation. This is particularly harmful if the new Directive is enforced against not-for-profit organisations such as Wikipedia, and newer startup platforms which do not have the funds to dispute copyright infringement claims.
Another key concern is the ambiguity of these amendments. Reddit, one of the largest social media websites, has criticised the amendments’ “sweeping [and] vague requirements that create enormous liability” for their platform.
Additionally, Medium, an online publishing platform, mentions that the new amendments inadvertently harm the industries which the new Directive seeks to protect. While the changes would benefit large publishing companies, small and independent publishers who rely most heavily on online platforms will lose out if a link tax is imposed.
Nevertheless, these potentially harmful consequences could be mitigated with the member states’ implementation approach. Perhaps countries could capitalise on the ambiguity of these amendments to achieve a more balanced approach to managing the interests of creators and online users.
Until the final vote in January 2019, there is still time to influence the decision on whether these amendments should be adopted. Even though the original aim of the Directive was to provide appropriate and proportionate measures to tackling copyright concerns, it appears that the EU might have missed the mark. However, we now need to look towards the member states. If applied cautiously, the negative impacts from this Directive could be balanced with the interests of independent content creators. Although the future of this Directive is uncertain, there is still hope yet to save our internet.