Controversial EU copyright reforms Articles 11 and 13 move one step closer

EU negotiators have finally reached a political agreement on the text of the new European Copyright Directive, moving the controversial reform one step closer to becoming law. This is a significant milestone after more than two years of intense negotiations and lobbying which have pitted the creative and content industries against the tech industry and consumer digital rights advocates.

The European Commission initially announced the copyright reform back in 2016 as part of its digital single market strategy, which aims to create more opportunities to do business across the EU whilst giving citizens better access to online goods and services. Although the reform was intended to make European copyright law fit for the digital age, its detractors have warned it could ‘break the internet'.

At the heart of the controversy are Articles 11 and 13. Article 11 (known as the ‘press publisher's right' or ‘link tax') initially required news online service providers, such as Google News, to obtain a licence to use online press articles. Article 13 (known as the ‘value gap') initially required platforms hosting user-generated content, such as YouTube or Facebook, to remunerate rightsholders for the use of their works and to take responsibility for copyright infringement by implementing technical measures such as upload filters.

Whilst rightsholders have broadly supported these provisions, the tech industry and digital rights advocates have voiced concerns that they would hamper online innovation, restrict free speech and lead to mass monitoring and censorship. The significant lobbying from both sides has caused numerous delays and set-backs as the EU institutions have tried to find a solution that satisfies both factions.

Article 11

The official version of the agreed text and the European Commission's press release give a fairly good indication of the compromise struck. Article 11 has been retained, but with the carve-out that it will not apply to hyperlinking or the re-use of "single words or very short extracts".

Whilst this appears to be a victory for online service providers, a large amount of uncertainty still remains as to what constitutes a "very short extract". This may mean that online service providers will proceed cautiously until further guidance has been given by the Commission or by the courts.

Article 13

Article 13 has also been retained, but it imposes weaker obligations upon platforms. Rather than being required to implement technical measures to prevent copyright infringement, platforms will instead have to conclude licensing agreements with rightsholders for use of their works. If no such licensing agreements are in place, platforms will have to (i) use their best efforts to obtain authorisation from rightsholders; (ii) use their best efforts to ensure the unavailability of unauthorised content which has been identified by rightsholders; and (iii) act expeditiously to remove any unauthorised content after being notified and use their best efforts to prevent future uploads. However, some believe that platforms will still need to use upload filters in practice to comply with these obligations and the increased costs and regulatory burden will make it harder for smaller platforms to compete with the internet giants.

Although there is a lighter regime for start-ups which have annual revenues under 10 million euros, fewer than 5 million monthly users and which have been around for less than three years, critics have pointed out that there are currently very few platforms in Europe that meet these criteria.

The tech industry and those advocating for freedom of expression continue to oppose the directive on an ideological level

As a result, the tech industry and those advocating for freedom of expression continue to oppose the directive on an ideological level and the lobbying is expected to continue ahead of the final plenary vote by MEPs at the end of March. If the MEPs vote in favour of the agreed text, member states will have a two year period to implement the directive into national law. The UK however will only be obliged to implement the new directive if it leaves the EU with a deal and the implementation deadline falls within the transition period.

If the new directive does become law, there is no doubt that it will have a significant impact upon all stakeholders, from individual authors and artists to major record labels and big tech companies. But will it break the internet? That remains to be seen.

Zoey Forbes is a Technology, Media and Entertainment associate at Harbottle & Lewis.