EU copyright law may end up pleasing no-one

Three IP lawyers pick over the result of the recent vote and find much that still needs clarification

On September 12, MEPs voted in favour of the amended EU Copyright Directive, which replaces current legislation dating back to 2001. In all, MEPs had to digest more than 250 amendments to the original text that they had narrowly rejected in July.

The debate had been fiercely contested. In the creative industries musicians, songwriters, artists, authors and publishers are looking for a fairer system of remuneration, while on the other side of the argument many are concerned that these provisions will restrict the free flow of content on the internet and possibly introduce new mechanisms by which states can censor and control content. Many in the latter camp had hoped that the more controversial provisions, Articles 11 and 13, would be discarded before the vote, but both were included in the final text, albeit heavily amended.

Article 13

One of the most contentious provisions in the original document, the requirement in Article 13 that online platforms such as YouTube filter content for copyright violations as it was uploaded, have been removed with the initial onus now placed on the uploader, said Rebecca Pakenham-Walsh, IP and technology specialist at Fieldfisher.

"Those who upload content to the Internet bear the initial responsibility for its legality, and platforms must assume that responsibility if and once they are notified of any illegality. Requiring platforms to filter content at the first instance could have a huge impact on businesses," she said.

Mark Owen, partner and IP lawyer at Taylor Wessing, said this would likely disappoint the creatives, while still requiring onerous work by the platforms in a way that is not yet clear.

"In what looks like a fudge, the requirement in Article 13 for platforms to scan uploaded content for infringements has been removed. Instead, where a platform does not have permission to use a particular work, it must ‘cooperate in good faith' with the right-holder to ensure such works are not available on their services," he said.

The precise meaning of ‘cooperate in good faith' has yet to be agreed. Advice will probably be issued once the Directive is in force early next year. "Presumably such guidance will not be mandatory but there will be sufficient pressure on the larger platforms to comply," said Owen.

With something like 100 hours' worth of video being uploaded to YouTube every minute, it's hard to see how any sort of control could be put in place without some sort of automated filtering system which might still give rise to a lot of false positives. One of the main concerns has been that memes and parodies will be caught up in the bureaucratic or automated dragnets, and more broadly that such systems will inhibit freedom of expression. However, commenting before the final draft was available, Shireen Peermohamed, partner at law firm Harbottle & Lewis, said assurances had been given to counter such fears.

"An EU spokesperson has confirmed that any action taken by online platforms must be designed so that it doesn't catch legitimate use of content, such as permitted quotations or parodies," she said. "What is clear is that content owners, content creators and online platforms will now need to look carefully at how they may need to adapt their businesses to comply."

Article 11

Article 11 has been amended with some clarification on what constitutes linked text for which a publisher could claim a fee and who can link to it for free. However, while public-domain opponents such as Wikipedia and individual users are now exempt, those who link to news articles, including news aggregators may have to pay a fee.

The uncertainly around the use of ‘snippets' of news stories in links remains, said Owen.

"Whilst there are exceptions for private and non-commercial use of press publications by individual users and hyperlinking, critics have argued that these are not wide enough. In particular, it seems unclear whether the hyperlinking exception would allow snippets of news to be included as currently happens."

Previous attempts at making Google in particular pay for linking to published materials failed at a country level; however, they might be more effective if introduced across the EU.

The scope of Article 3, which covers data mining and text mining and has implication for the developments of AI, has been broadened somewhat, with restrictions on what can be processed without licence being devolved more the member states.

After Brexit

As a Directive the new measures will be open to a degree of interpretation by each of the 27 member states (unlike GDPR which is a Regulation). So, we can expect there to be much more wrangling over the details before it becomes law - by which time the UK may well no longer be part of the bloc.

"How the provisions will play out in practical terms remains to be seen. What is also unclear in the UK is whether we will even be implementing these provisions if the implementation date falls after the Brexit date. However, even if the UK did not implement these provisions, there would still be knock-on effects in this country," said Fieldfisher's Pakenham-Walsh.

In that case the UK would need to decide whether to accept the terms of the Directive or not. "Given the UK's strengths in both technology and media, this will be a difficult choice," said Taylor Wessing's Owen.

The hope is that the new rules will allow a fairer deal for one without making the other uncompetitive.

Details of all the amendments and the final texts have been published by the European Parliament.