Copyright Directive

This week the European Parliament approved a controversial copyright law, the “Copyright Directive” (“Directive”), that may have serious implications for both providers and consumers of online content in Europe. While this may not be relevant to most of our readership, it may be an important testing ground for changes in US copyright law. For example, Europe has been on the forefront of online privacy protection with the passage of the GDPR, which some have suggested provides a model for US privacy legislation. Given the controversy over the new Copyright Directive, some of us may wish that it doesn’t see the light of day in the United States. Here’s what we mean.

Under the EU system, a directive is not a law but a formal instruction to the member states to enact laws consistent with the directive. Thus the European Copyright Directive is a set of legal provisions that the European Parliament tells its member states to enact under each country’s law. That’s the mechanics.

Two articles of the Directive have received intention,  Articles 11 and 13.  Article 11, referred to as the “Link Tax,” enables publishers to receive payment from online platforms that share news stories; Article 13 imposes liability on online platforms for uploading infringing content. According to The Verge,

Both measures attempt to redress an imbalance at the core of the contemporary web: big platforms like Facebook and Google make huge amounts of money providing access to material made by other people, while those making the content (like music, movies, books, journalism, and more) get an ever-shrinking slice of the pie.

Yet, much of the criticism is aimed at the lack of precise definitions in the Directive, the ambiguity raised by its requirements, and the absence of predictability.  For example, The Electronic Frontier Foundation (“EFF”), a harsh critic, has written:

Under Article 11, text that contains more than a “snippet” from an article are covered by a new form of copyright, and must be licensed and paid by whoever quotes the text, and while each country can define “snippet” however it wants, the Directive does not stop countries from making laws that pass using as little as three words from a news story.

Article 11 makes it legitimate to charge other sites for linking to stories as well as outright banning them from linking.  There are many other concerns, ranging from the definition of “snippet” and “news site”, and lack of protections for small and non-commercial businesses such as, for example, Wikipedia. While Article 11 offers protection to private and non-commercial platforms, it is not clear what constitutes a commercial platform.  As The Verge points out, “What about blogs or RSS feeds that aggregate headlines in much the same way Google News does? What about a Facebook page operated by an individual who also has a huge audience?”

As for Article 13, the EFF believes it completely ignores how copyright operates on the Internet.  Currently, Internet providers are not required to check every posting made on their site but if they receive a take-down notice by a rights owner, they are required to remove infringing content.  Article 13

demands that the people who operate online communities somehow examine and make copyright assessments about everything, hundreds of billions of social media posts and forum posts and video uploads.

Obviously, this task is impossible without filtering technology, which may not be available to small providers.  There is also the risk that filtering technology may not be accurate enough or, just as bad, be too accurate and over inclusively filter content.  According to The Verge, “Such a mechanism would be ripe for abuse by copyright trolls and would make millions of mistakes. The technology simply doesn’t exist to scan the Internet’s content in this way.”

This is a just a taste of the many controversies arising out of the Directive.  What happens next?  The EU leadership must pass the Directive at the next meeting of the European Council.  Then, the EU states will have until 2022 to enact laws consistent with the Directive.  Given the lack of clarity cited by the critics of the Directive, it is a safe bet that the EU states will not add more predictability to the requirements of the law; they may, in fact, make it worse.  We will keep you informed.

–Adam G. Garson, Esq.