European Union Copyright Directive’s Back on the Radar

We previously commented in early July on the proposed European Union (“EU”) Copyright Directive. At that time, the proposed Directive had just endured a setback before the Parliament, which decided to revise it.

After the summer break, on September 12, 2018, the EU Parliament finally adopted its “revised negotiating position.” The Parliament announced in its press release that it had added to the text “safeguards to protect small firms and freedom of expression”. The EU Parliament confirmed the two most controversial provisions, Articles 11 and 13, but made the following changes.

Article 11

Article 11, entitled “protection of press publications concerning online uses” creates a new ancillary copyright, or “neighboring” right for the publishers of press publications. The revised version remains fairly similar to the original one, with some “explanatory” additions to highlight that this right is created “so that [publishers of press publications] may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.” The revision reduced the duration of this new right from 20 years to 5 years after publication.

The Parliament also addressed the issue of hyperlinks by excluding from the scope of this new right “hyperlinks which are accompanied by individual words.” However, this change is probably not enough to satisfy Article 11’s opponents. In any case, “individual words” will certainly be a challenging notion to interpret.

Article 13

The Parliament also adopted a revised version of Article 13, which creates new obligations for internet platforms to affirmatively obtain permission for the content they host, or if not to implement “effective technologies” (e.g., recognition algorithms) to prevent infringing content from being distributed.  In response to fears that the increasing the use of “filters” could cause the “censor” of non-infringing works, the Parliament added that “cooperation between online content service providers [i.e. Internet platforms] and right holders shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright.” The Parliament also added that, “when defining best practices, special account shall be taken of fundamental rights, the use of exceptions and limitations as well as ensuring that the burden on SMEs [small and medium-sized enterprises] remains appropriate and that automated blocking of content is avoided.”

Furthermore, the Parliament elaborated on a new obligation to put in place complaint and redress mechanisms for users in case the cooperation between internet platforms and rights holders leads to unjustified removal of content. The Parliament specified that such complaints must be processed without undue delay and be subject to “human review.”

Note that the Parliament’s version of the Directive also provides that this cooperation should not lead to any identification of individual users or to the processing of their personal data. This links the Copyright Directive to another very debated and discussed EU Regulation, the “General Data Protection Regulation” (the “GDPR”), which went into effect on May 25, 2018. You can read about what IP practitioners should know about GDPR here and learn more about GDPR on our Security, Privacy, and the Law blog.

The Copyright Directive will now enter final negotiations with the EU Council and the EU Commission before its final vote at Parliament. The EU Commission has stated that it anticipates that a final version of the Directive, approved by all three EU bodies, will be ready by the end of 2018.

Stay tuned for the next episode…

 

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