It’s been a great week for creators, including authors and writers, as the European Parliament approved an amended version of its Copyright Directive on Wednesday, September 12, with a vote of 438 to 226. “[E]ngag[ing] in one of the biggest rounds of lobbying that the EU has ever seen,” European lawmakers took the initial steps of aligning copyright law with the digital age, including allowing creators to seek revenue when their creations appear or are used online.
Articles 11 and 13
Specifically, the European Parliament approved two parts of the Directive: Articles 11 and 13. Article 11, commonly known as “link tax,” essentially “grant[s] news outlets a claim to copyright over the sharing of their content online” and would require search sites and other news services, like Google and Facebook, “to pay publishers for showing news snippets or linking to news stories on other sites.” Under the amended Article, publishers can ask for, and collect, licensing fees when their work is shared on such sites, thereby allowing publishers to receive fair compensation for their works.
Advocates of the amendments of Article 11 find that it “ensure[s] that authors and artists receive their due recognition, payment and protection,” while preventing news services and search sites, like Google and Facebook, from “‘plundering’ the news and their ad revenues, resulting in a ‘threat to democracy.’”
However, not everyone is pleased with the amendments to Article 11. Opponents, mainly large Silicon Valley technology companies, argue that Article 11 is too broad, potentially encompassing news stories shared by individuals, along with links to articles and article headlines. These concerns are conflated though, especially given the amended language of Article 11. Section 1a of Article 11 does “not prevent legitimate private and non-commercial use of press publications by individual users.” Section 2a also states that Article 11 does “not extend to mere hyperlinks which are accompanied by individual words.”
Given the Article’s amended language, Article 11 strikes a fair balance between allowing news services and search sites to display such links, while also providing publishers with the adequate compensation they so rightly deserve.
Article 13, viewed as one of the most contested articles, would require internet platforms to implement “upload filters” in order to filter out unauthorized uses of copyrighted materials. Under Article 13’s amendments, “‘internet platforms [are required] to work together with copyright owners like never before.’” “Online content sharing service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users” would need to work with copyright owners to ensure that any unauthorized use of copyrighted material wasn’t being uploaded on the service providers’ sites. The service provider would essentially act as a gatekeeper, ensuring that all content uploaded by users doesn’t violate copyright, or risk being held liable themselves for their users’ actions.
Article 13’s amended language places new responsibilities on service providers, making them “more legally liable for what appears on their sites” and demonstrates a “shift away from allowing tech platforms freedoms absolving them of such responsibility.” Advocates of Article 13 have noted how it “‘will at last provide the tools to ensure the fair remuneration that creators have been asking for,’” while “‘stop[ping] websites from hosting and profiting from user uploaded copyrighted content without seeking permission or providing compensation to copyright owners.’”
Critics, however, argue that implementing “upload filters” creates a “censorship regime” that results in the internet being used for “‘automated surveillance and control’” that could potentially be abused by copyright trolls. Others have pointed out that such filtering technology “simply doesn’t exist” and would most certainly make mistakes, increasing the chances of service providers facing liability. YouTube, which would directly be affected by Article 13, even speculated that “some parts of the proposal may undermine the new media economy, potentially discouraging or prohibiting platforms from hosting content posted by users.”
While critics are concerned with the Article’s potential censorship, the Article’s amended language contains several safeguards and exceptions that combat these concerns. Section 2a states that service providers and rights holders can’t prevent the posting and hosting of “non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright.” In addition, Section 2b adds that any “unjustified removals” are to be addressed by “effective and expeditious . . . mechanisms . . . [which] shall be processed without undue delay.”
The European Parliament’s approval of Articles 11’s and 13’s amended language is just the beginning of the European Union’s copyright reform. While the approval signals that lawmakers are ready to bring copyright laws into the 21st century and introduce an era of responsibility for service providers, the Articles still must go through a negotiation process between the European Parliament, the European Commission, and the European Council. The final vote on Articles 11 and 13 is expected to take place in early 2019. Those within the creative industries agree that this “overhaul is necessary to protect Europe’s cultural heritage and create a level playing field between big online platforms and publishers, broadcasters and artists.”