European Parliament approves controversial online copyright law

Legislators ignore protests, experts and activists to sign directive - including Articles 11 and 13 - into law

The European Parliament today approved the Copyright in the Digital Single Market Directive in including the controversial Article 11 and Article 13 (now renamed Article 17).

Article 11, dubbed the link tax, requires news aggregators and others to pay a charge when they link to certain articles on the web.

Article 17 will require online platforms such as YouTube to filter or remove copyrighted material from their websites.

It is now highly likely that the Copyright in the Digital Single Market Directive will become law; rejection would require at least one member state to vote against the Directive when the European Council meets in April.

If it goes through as expected, member states will have until 2021 to transpose the Copyright Directive into their own laws. There is likely to be a difference in implementation between France, which has been most in favour of the changes, and Poland and Germany whose politicians have been much more cautious following large demonstrations. This will doubtless lead to a situation defined by confusion of definitions and protracted legal wrangling.

"We can expect media and rightsholders to lobby for the most draconian possible national laws, then promptly march to the courts to extract fines whenever anyone online wanders over its fuzzy lines," said the Electronic Frontier Foundation (EFF).

"The Directive is written so that any owner of copyrighted material can demand satisfaction from an Internet service, and we've already seen that the rightsholders are by no means united on what Big Tech should be doing. Whatever Internet companies and organizations do to comply with twenty-seven or more national laws - from dropping links to European news sites entirely, to upping their already over-sensitive filtering systems, or seeking to strike deals with key media conglomerates - will be challenged by one rightsholder faction or another."

However, the EFF added that ambiguities in the Directive also provide opportunities for opponents to rein in the most severe aspects of the legislation.

The text of the Directive as passed could have very concerning and unintended consequences for vast swathes of online services - Raffaella De Santis

Raffaella De Santis, associate at law firm Harbottle & Lewis, commented:

"Artists and creators will hail the passing of the Directive as a real victory for their right to be fairly paid for their creations. However the effect of the text of the Directive as passed could at the same time have very concerning and unintended consequences for vast swathes of online services, not simply those operating in music or news. This outcome is unpopular with digital services and importantly, many European voters.

"The key focus now will be on how the Directive is implemented across the EU over the next two years, and care will need to be taken to ensure that smaller services are not disproportionately disadvantaged by measures which are in reality designed to curtail the formerly unchecked power of the tech giants."

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