We had been following on this blog the heated debates around the proposed EU Copyright Directive. These debates now belong to history since on March 27, 2019, the European parliament adopted the Directive with 348 votes against 274 and 36 abstentions.
The two most controversial provisions are Article 15 (previously 11) and Article 17 (previously 13).
Article 15: Creation of a New IP Right for Publishers of Press Publications
Article 15 addresses the issue of press publications that are circulated on the internet. It refers to two categories of players: on the one hand, the publishers of press publications established in the EU and, on the other hand, internet service providers such as internet platforms.
The title of article 15 is “Protection of press publications concerning online uses,” and it is easy to guess that the goal here is to provide for publishers the possibility of compensation when their content is used on the internet. This is achieved by creating a new intellectual property right, similar to copyright but different, a new “neighboring” right.
This new right will last for two years after the first publication of the content.
As a result, people who previously “used” content without paying any fee, would now have to pay, which obviously is not going to please them.
The controversy has focused on hyperlinks and snippets (short summaries of articles).
Now the Directive in its final version provides that the new right does not apply “to acts of hyperlinking” or “in respect of the use of individual words or very short extracts of a press publication.”
Press publishers usually do not like these snippets and hyperlinks because readers may get the information they were seeking without having to read the full article. As a result, the number of clicks and the advertising revenues derived therefrom are not as high as they could be. On the other hand, the Directive’s detractors are arguing that hyperlinks that include snippets are in fact advertising the press articles because users are more likely to click on the link and be redirected to the press publishers’ websites.
Article 17: Internet Platforms’ Obligation to Get Licenses Or Prevent Infringements
Article 17, which provides that internet platforms are liable for content that users upload, is even more controversial. Its goal is to allow artists with rights on all types of works (including videos) to get a share of the revenues derived from the internet.
Those who are targeted here are a narrower category of providers, the “online content-sharing service providers”, i.e. internet platforms such as YouTube. Article 17 imposes fairly heavy new obligations on these entities by requiring them affirmatively to obtain the right holders’ authorization. If no such authorization has been obtained, they will be liable unless they can demonstrate that they have:
- made best efforts to obtain an authorization, and
- made best efforts, in accordance with industry standards, to make the works unavailable; and in any event
- acted expeditiously, upon receiving notice, to disable access to the notified work and made best efforts to prevent its future uploads.
When courts will have to determine whether the platforms have complied with the above obligations, they will have to take into account “the availability of suitable and effective means and their costs”.
Here again, one can understand why internet platforms complain: these new obligations mean more costs. This is why the obligations are lighter for small platforms with an annual turnover below 10 million euros.
Many arguments have been raised against this provision. First, from a legal point of view, some argue that the new provision is inconsistent with other European provisions, in particular the E-commerce Directive or the European Union Charter of Fundamental Rights. From a technical point of view, others doubt whether it is feasible to conclude licensing agreements with all the right holders or to create effective technologies in relation to all sorts of creations.
On the internet, the controversy focused on “memes.” Memes are pictures or photos of well-known characters protected by copyright with comments of a humoristic or political nature. Some argue that the “effective means” that will have to be implemented to make contents unavailable could block memes because these technologies areunable to differentiate between actual infringements and uses that shouldqualify as legitimate parody, for example:
In its final version, the Directive provides that Member States must ensure that users are able to rely on any of the following exceptions or limitations when uploading and making available content generated by users on online content-sharing services:
- quotation, criticism, review;
- use for the purpose of caricature, parody or pastiche.
Now that the European Parliament has issued this final vote, a majority of EU countries must approve it at the European Council. Then, the Directive will have to be implemented into each national law within two years. Since the rules set out in the Directive are often not very detailed, further debates will take place at national levels and national rules may end up being quite different from one Member State to another.
If the new IP Right under Article 15 does not apply “to acts of hyperlinking” or “in respect of the use of individual words or very short extracts of a press publication”, wouldn’t the infringing use under this new right also be an act of copyright infringement?