On 12 September 2018, The EU Parliament has adopted the amended proposal for the Directive on Copyright in the Digital Single Market. With the vote (438 / 226), the EU Parliament adopted its negotiating position, meaning that it will now discuss the proposal in trialogue with the EU Council and the EU Commission. These negotiations are expected to last until December 2018, when a final text will be adopted for implementation by the different EU Member States. The eventual implementation of the Directive into national copyright law will normally take several years.
In today’s press conference, Member of the European Parliament, Helga Trüpel, called the vote a testament to European sovereignty and lawmaking. She further explained that the Directive “does not intend to bring down the freedom of the Internet but aims to make the Internet a fairer place”. The proposal attempts to apply the principles and regulations applicable to copyright in an analogue environment to the digital world in order to close the value gap that exists today.
The EU Parliament also critised the hysterical narratives and misinformation campaigns directed by big Non-European tech giants and platform operators lobbying against the adoption of the proposal. The Parliament expressed that the vote gives a clear signal to these corporations that they can participate in the EU market, but only when playing in accordance with EU rules.
To push through the proposal, the EU Parliament adopted some important amendments to its two most controversial articles, namely articles 11 and 13.
Article 11, also dubbed the "news article link tax", conceives a new ancillary right for publishers of press publications for the digital use of their published articles. The right would require news content aggregators, such as Google News, to conclude licensing agreements with publishers of press publications so that they may obtain fair and proportionate remuneration for the digital use of their articles. Important amendments to the text initially proposed by the EU Commission are the exceptions that this new right (i) shall not prevent legitimate private and noncommercial use of press publications by individual users, and (ii) shall not extend to mere hyperlinks which are accompanied by individual words. Also, article 11 now clearly specifies that the authors of the news articles (journalists) must receive a fair and appropriate share of the revenues obtained by the publishers using this right.
Article 13 introduces a new type of intermediary, the online content sharing service provider. These service providers will be required to conclude fair and transparent licensing agreements with copyright holders and collective rights management organisations when they store and give access to large amounts of works and other subject-matter uploaded by their users. Article 13 serves to shift the liability from individual uploaders to the platform operators, unless the users act for commercial purposes. The Parliament has addressed concerns that this provision may result in censorship and excessive content filters by deleting the text requiring the implementation of measures, such as content recognition technologies, to prevent infringements. However, online content sharing service providers would still be required to cooperate in good faith to ensure that unauthorized protected works or other subject-matter are not available on their platforms. The Parliament also reduced the scope of article 13 by specifically excluding micro-enterprises and small sized enterprises, such as startups, together with other specific service providers, such as online encyclopedia and educational or scientific repositories. Other service providers which are explicitly excluded are providers of cloud services for individual use that do not provide direct access to the public, open source software developing platforms and online market places whose main activity is online retail of physical goods. As a result, article 13 is clearly intended to apply only to the big online content providers, such as Youtube and Soundcloud, that store and give access to the public to a significant amount of copyright protected works uploaded by its users, which the providers optimise and promote for profit making purposes.
As the proposal is still in trialogue discussion, it is still possible for the provisions to be amended to further address concerns of the EU Commission, the Council or Members of Parliament. It is also important to note that the proposal still concerns an EU directive. This means that after the adoption of a final text by the EU authorities, every Member State must still transpose the directive into their respective national copyright laws. The eventual implementation of the Directive will certainly provide further clarity on the practical implications of articles 11 and 13 throughout the EU.
PETILLION is keeping a close eye on any further developments.