On 20 June 2018, the EU Parliament Committee on Legal Affairs (JURI) voted (by a tight margin) to adopt an amended version of the proposed EU Directive on Copyright in the Digital Single Market, which includes proposals for the highly controversial ‘link tax’ for news platforms (Article 11) and potential upload filters for platforms which host User Generated Content (Article 13). The full European Parliament still needs to vote on these proposals and the final text would then need to be agreed with the Commission and Council, but you need to know about these changes at this point if you:
- create content or are a rights-holder;
- publish news online or run a news agency;
- are an ad or media agency helping publishers and platforms to monetize third party content; or
- operate a social media platform, news aggregation service or other content-sharing platform.
The two most controversial proposals are:
Article 11 proposes a new category of ‘neighbouring right’ for press publishers and news agencies in their publications. Although this neighbouring right has been referred to as a ‘link-tax’ it would not prevent hyperlinking to articles as such. However, when hyperlinking to articles it is usual to include a snippet from the article or its headline, so it is clear what the article is about. Article 11 will make it easier for press publishers to obtain licence fees for the use of such snippets from news aggregators and other online platforms when they share, or allow their users to share, links to articles. Some commentators point out that this appears to afford better protection to the negotiating position of publishers, than that of the original author.
Article 13 proposes that platforms which allow users to share and upload content would be directly liable to rights-holders for any resulting copyright infringement and requires content-sharing platforms to enter into fair and appropriate licensing arrangements with rights-holders covering any uploaded content if a rights holder so requires.
If a platform has no licence in place with a rights-holder then Article 13 requires platforms to take appropriate and proportionate measures leading to the “non-availability” of any copyright infringing content. Depending on how this article is expressed in national law, this requirement could result in an obligation to pre-filter uploads (e.g. using an automatic content-recognition system). Any content which is identified as potentially infringing third party copyright would then be rejected. (Although the proposal attempts to preserve the no-monitoring provisions of the e-Commerce Directive, it will be practically difficult for platforms to: (i) comply with Article 13; and (ii) avoid any liability for user content, without proactively monitoring uploads.)
Critics argue that the JURI proposal will have a chilling effect on freedom of expression online, and is unnecessarily broad. For example, automatic content filters are unlikely to pick up on copyright exceptions for parodies or incidental music in the background to live video news reports. Also, there are concerns that upload filters may block popular content such as memes and remixes which reference prior works. In addition, smaller platforms with fewer resources to employ content filtering technologies may be disproportionately penalised by the proposed article, leading to platform consolidation.
High profile digital rights campaigners are also arguing that Article 13 will lead to pre-publication censorship of any content shared over the internet. Just before the JURI vote, a group of more than 70 influential internet stakeholders (including Tim Berners-Lee and Jimmy Wales) wrote an open letter to the President of the European Parliament calling for the deletion of Article 13 entirely, in order to prevent platforms from automatically filtering uploads and imposing online surveillance measures.
You can find further background on the EU’s proposed copyright reforms on our Digital Single Market page here, or get in touch with one of the experts listed below.