The New EU Copyright Directive –– Good or Bad News?

In an unprecedented era where digital content can be accessed on demand almost anywhere in the world, content creators seek to be recognized or at least remunerated for their efforts.[1] On June 7, 2019, the European Union finalized the Copyright in a Single Digital Market directive to strike a balance between copyright holder remuneration and content user liberation.[2] As a directive, it is up to the Member States to figure out how to implement the new law.[3]

The Directive applies to online service providers (OSP) “whose main or one of the main purposes is to store and give the public access to a large amount of copyright protected works or other protected subject-matter uploaded by its users which it organises and promotes for profit-making purposes.”[4] The OSPs that are liable under this Directive must be determined on a case-by-case basis, evaluating relevant factors such as their size and effect.[5] Start-up service providers that have been in existence for less than three years and yield a net income less than ten million euros are exempted.[6] Non-profit organizations, educational databases (e.g., Wikipedia), shopping marketplaces (e.g., Amazon), and cloud storage services are also exempted.[7]

Articles Fifteen and Seventeen (formerly known as 11 and 13) of the Directive are highly controverted because they require OSPs to attain authorization from copyright holders and remunerate them for their work, which means the censorship of non-licensed copyrighted material that users could upload.*

Article Fifteen requires service providers to compensate journalistic publishers for using their articles.[8] Article Fifteen is geared toward OSPs like GoogleNews, which use articles from other publishers,[9] not “private or non-commercial uses of press publications carried out by individual users.”[10] It seeks to protect and preserve news publications within the Member States, specifically.[11] Thus, news agencies outside of Member States do not have these copyright protections and can be used by OSPs without authorization.[12]

The controversy surrounding Article Fifteen is based on fear that search engines will become non-resourceful.[13] But the drafters make it clear that the fair use exception to copyright infringement still applies to using unauthorized articles: “the use of individual words or very short extracts . . . should not fall within the scope . . . of this Directive.”[14] So, there should be no fear that resourceful articles will become obsolete under this Directive––only a guarantee they will appear incomplete.

Article Seventeen imposes liability on OSPs if content uploaded to their websites has not been authorized or permitted by the true owner of that content.[15] The Article’s first paragraph justifies this imposition of liability, stating that an OSP with unauthorized rightholder content “performs an act of communication to the public,” and is therefore responsible.[16] To be authorized, OSPs negotiate a reasonable mechanism of remuneration for the use of a copyright holder’s work.[17] OSPs can escape liability by a showing of “best efforts” to (1) obtain authorization, (2) ensure the unavailability of specific works, and (3) remove the unauthorized content and prevent future uploads.[18]

Article Seventeen is the most controversial piece of the Directive.[19] Editors, bloggers, and CEO’s ponder how these OSPs will prevent unauthorized content from being uploaded without infringing upon democratic rights guaranteed by the Charter of 2009.[20] While the Directive expressly prohibits “general monitoring,” there must be a liability mechanism in place for filtering out unauthorized uploads.[21] OSP users fear lawful content will be mistakenly or intentionally censored out; [22] OSP owners fear the weighty financial burdens of filter software (e.g., YouTube spent over $100 million on their “Content ID” filter).[23]

But Article Seventeen gives OSP users reason to celebrate the change. Users are no longer legally liable for what they upload to an OSP under the Directive because the OSP is held responsible under the Directive, being more than an intermediary for data, unless the users are reaping loads of independent capital.[24] Regardless, the only content users can upload is authorized content.[25] Wherever content is removed, the user has the legal right to be informed as to the reason for removal and a right of appeal.[26] Memes, gifs, and other satire are strictly protected by Article Seventeen and cannot be removed or filtered from an OSP.[27]

While it might pose a financial burden on OSPs to accommodate for the Directive, the legal benefits to their users and rightholders far outweigh this consequence. Like the legend of Robin Hood, where a thief takes from the rich to relieve the poor, smaller businesses will take just-remuneration from big tech companies for their artistry. But unlike Robin Hood, this “taking” is completely legal under the EU’s new copyright directive.

Published in the Arts & Cultural Heritage Law Newsletter (Spring 2019)

[1] Composition by Cameron M. Fathauer, J.D. student at Indiana University Maurer School of Law, June 2019.

[2] Browne, Ryan (15 April 2019). “Article 13: EU Council backs copyright law that could hit YouTube, FB”. CNBC. Retrieved 15 April 2019; See Copyright in the Digital Single Market, 2019/790/EC, intro, ¶ 61.

[3] Ibid. This is why the Directive will not take effect until 2021.

[4] Art 2, ¶ 5. See intro, ¶ 62.

[5] Id. at intro, ¶ 66

[6] Id.; Art 17, ¶ 6.

[7] Ibid.

* EU Parliament moved Articles Eleven and Thirteen to Articles Fifteen and Seventeen for the final legislation of 2019/790/EC.

[8] See 2019/790/EC, ¶ 33.

[9] Ibid.

[10] Art 15, ¶ 1

[11] Id. at ¶ 32.

[12] Id.

[13] https://www.nytimes.com/2018/07/05/business/eu-parliament-copyright.html; https://slate.com/technology/2019/04/eu-copyright-directive-article-13-wreck-internet.html