EU Copyright Law Fit for The Digital Age

Introduction

Imagine this. You were at Dodger Stadium when the Red Sox won the World Series. Now, you want to blog about that unforgettable experience. As you type up your blog, you add in hyperlinks to MLB highlight videos and commentary, and even embed a video that you recorded of the very moment that you and fellow fans erupted in celebration when the Red Sox secured their victory. As soon as you click “Publish”, the blog site scans the content of your blog and automatically prevents you from publishing your blog post. “Why?” you ask. Due to various copyright infringement issues. Would you be shocked and confused?

Well, this could very well become one of many new realities throughout the European Union (EU) now that the European Parliament has stated its position on the copyright reforms proposed by the European Commission (EU Copyright Directive). On September 12th, with 438 votes for, 226 votes against, and 39 abstentions, the members of the European Parliament (MEPs) adopted an amended version of the EU Copyright Directive after the initial proposal was rejected last July.¹ The Directive has received mixed reactions from various groups and individuals, with the most controversy centering around Articles 11 and 13, or more commonly referred to as the “link tax” and “upload filter”, respectively.

So, what is the EU Copyright Directive? Why are Articles 11 and 13 stirring up so much controversy? This article aims to provide answers to both of these questions. But first, let’s start with a bit of background. What is copyright? How is it regulated at the EU level? Why is there a sudden initiative to make sweeping modifications to a well-established framework?

I. Brief Overview of EU Copyright Law

A. Copyright Regulation at the EU Level

As a general principle, copyright protects the expression of original works that have been created by a natural person. The threshold for originality may vary from one EU Member State to another, but nonetheless, is a relatively low bar. Examples of protected copyright are literary works, graphic works, audiovisual works, musical works, photographs, and software. Copyright grants the creator of the original work with a certain number of exclusive rights, which can be divided into two categories: economic and moral rights. Copyright is established with the creation of the work; therefore, publication, fixation, or registration are not required to obtain protection.² As a general rule, copyright protection lasts until seventy years after the death of the author.

Currently, at the EU level, copyright law is comprised of over 10 Directives, which intend to reduce national discrepancies, ensure the requisite level of protection to foster creativity, promote cultural diversity, and ensure better access for consumers and businesses to digital content and services across Europe.³ These directives harmonize the essential rights of copyright holders. For example, prior to any directive, the scope of exclusive economic rights granted to copyright holders differed between Member States. However, now, these varying economic rights can be reduced to three main rights harmonized by the Information Society Directive: (1) reproduction, (2) communication to the public, and (3) distribution.⁴

B. The Need for Copyright Reform in the Digital Age

The current EU copyright framework--some of which dates back to 2001--has not adapted well to the new ways in which creative works are being produced, distributed, and accessed. Accordingly, in May 2015, the European Commission set out to “modernis[e] the EU copyright rules” to account for the recent and rapid transformation of digital technologies, namely the internet.⁵

C. The Digital Single Market Strategy

Along with the rapid transformation of digital technologies comes existing barriers online that can lead to EU citizens missing out on goods and services, internet companies and start-ups having their horizons limited, and businesses and governments not fully benefiting from digital tools. To bring down these barriers, the European Commission devised a “Digital Single Market Strategy” to move from 28 national markets to a single market, “where the free movement of goods, persons, services, capital, and data is guaranteed--and where citizens and businesses can seamlessly and fairly access online goods and services, whatever their nationality, and wherever they live.”⁶

In order to “modernis[e] the EU copyright rules to fit the digital age, the European Commission presented several legislative proposals with the following goals in mind:

• Better choice and access to content online and across borders;
• Improved copyright rules for education, research, cultural heritage and inclusion of disabled people; and
• A fairer online environment for creators and the press.⁷

Altogether, four legislative proposals were presented to ensure that consumers and creators can make the most of the digital world. The first two are (1) a Directive⁸ and (2) a Regulation⁹ meant to implement the Marrakesh Treaty in EU law.¹⁰ Both have been adopted by the European Parliament and the Council of the EU and were published in the Official Journal of the EU on September 20, 2017.¹¹ The other two proposals, which are still under review, are (3) a Regulation on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions,¹² and (4) the EU Copyright Directive.¹³ It is this last proposal that has been causing a lot of waves.

II. The EU Copyright Directive

A. Aims and Objectives

The EU Copyright Directive focuses on the following three main objectives:

1. More cross-border access for citizens to copyright-protected content online;
2. Wider opportunities to use copyrighted material for education, research, cultural heritage and disability (through “exceptions”); and
3. Clearer rules of the game for a functioning copyright marketplace, which stimulates creation of high-quality content.¹⁴

Through this copyright reform, the European Commission aims to modernize and harmonize some important exceptions to the copyright rules in the fields of research, education, and preservation of cultural heritage; foster quality journalism; ensure that content-creators and investors have control over the availability of their content online and are compensated fairly; and increase transparency and balance in the contractual relationships between the creators and their producers and publishers of content.¹⁵ Despite the European Commission’s well-intentioned aims and objectives, the EU Copyright Directive has ignited heated debates.

B. Article 13: The Upload Filter

Article 13, nicknamed “the upload filter”, is the most controversial provision of the EU Copyright Directive. According to Article 13, “online content sharing service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users” are liable for copyright infringement committed by their users.¹⁶ In other words, online platforms can be sued by copyright holders if they do not remove infringing content.¹⁷

The controversy lies in the manner in which online platforms are expected to identify and remove such infringing content. In the initial proposal, the EU Copyright Directive referred to “proportionate content recognition technologies”, which many believed to mean that online platforms would have to use automated filters to scan uploaded content and block anything that violates copyright from being uploaded.¹⁸ However, in the latest amended version of the Directive, this was replaced with language stating that when Member States and stakeholders define best practices, “special account[] shall be taken of fundamental rights, the use of exceptions and limitations as well as ensuring that the burden on [small and medium-sized enterprises] remains appropriate and that automated blocking of content is avoided.”¹⁹

Some believe that despite this added exception, filters are not sophisticated enough to distinguish between excepted copyrighted materials and otherwise infringing material. So, although proponents of the directive argue that memes, for example, are protected as parodies and, therefore, would not be required to be removed under Article 13, memes would be blocked anyway. Thus, the implementation of automated content filtering systems could inadvertently amount to unwanted censorship. Allowing online platforms to monitor every upload to ensure that users do not infringe on copyright could have a negative impact on the freedom of speech. For example, content creators on YouTube, which uses an automated system to scan content for copyright claims, have had their content mistakenly flagged for copyright infringement. In response to such criticism, some key proponents of the directive have simply said that Article 13 will not lead to the censorship that opponents fear.

While Article 13 provides an exemption for smaller online platforms, it only allows them to avoid temporarily the proposed requirements as they will have to conform as they grow in size. Otherwise, the alternative is to remain small forever.

As for the big online platforms, they rely heavily on user-generated content, where people share images, music, and clips from movies. Article 13 would shift the burden of removing copyrighted content from copyright holders to them. Presently, the burden has been on copyright holders to enforce copyright protection such that only after a copyright holder sends a request to an online platform does the platform have the obligation to act--typically by removing the infringing content. The approval of the EU Copyright Directive would cause these platforms to revamp this model.

Amidst the controversy of Article 13, MEPs face the tough challenge of finding the delicate balance between protecting the legitimate interests of copyright holders and encouraging user creativity and freedom of speech.

C. Article 11: The Link Tax

Article 11 provides that press publications “may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.”²⁰ In other words, online platforms, like Google and Facebook, cannot link to publishers’ stories unless they first negotiate a license with the relevant publisher. Thus, this provision has been called the “link tax”.

The controversial aspect here is Article 11’s ambiguity. How much of a story has to be shared before a platform has to pay the publisher? The EU Copyright Directive states that platforms will not be required to pay if they are sharing “mere hyperlinks which are accompanied by individual words”.²¹ However, most links are accompanied by more than one word. A typical link consists of the URL address, an article title, as well as preview text contained in the meta tags. So, it seems as if most online platforms and news aggregator sites would violate this rule. Additionally, opponents of Article 11 believe that this provision would allow news sites to charge excessive fees for the right to quote them or to refuse to cooperate altogether, thereby, giving news sites the right to choose who can criticize them.

Article 11 does, however, provide an exemption for “legitimate private and non-commercial use of press publications by individual users”.²² This likely means that private individuals sharing links on online platforms [e.g., online encyclopedias such as Wikipedia, or open source software platforms such as GitHub] will not have to negotiate licenses with publishers. But without a definition of “private and non-commercial”, we cannot know for sure.

Overall, it is apparent that Article 11 is intended to ensure that media companies and artists are fairly remunerated for their creative content. But is this at the risk of neglecting the principles of linking, sharing, and creativity that helped the internet grow into what it is today?

D. Article 12a

Lastly, Article 12a may reserve the right to make available (e.g., publish, share, or present), reproduce, or record a sports event to the organizers of the sports event.²³ So, in the scenario in the beginning of this article--this provision would ban your Red Sox video from being posted on the blog site. The argument is that the ticket to a game gives the purchaser the right solely to watch the game as a spectator, not to take videos and photographs of the game and post them, too.

Critics of Article 12a believe this will give organizers an unprecedented amount of control over what spectators can do in the sporting arena. Additionally, smaller sports teams with less coverage benefit from their fans promoting them through recordings of their personal experience. This provision would make it that much more difficult for these sports teams to receive exposure.

Given that the final text of the EU Copyright Directive is still pending it is hard to say how Articles 11, 12a, and 13 will be implemented and what their practical effects will be. But it is clear that this Directive is attempting to redress an imbalance at the core of the contemporary web--big online platforms profiting from making copyrighted material accessible to others while the content creators and publishers of those materials get a sliver of the pie. Will the EU Copyright Directive truly level out the playing field as hoped?

III. What next?

In early 2019, the European Parliament’s final vote will take place. If officially adopted, the EU Copyright Directive will be interpreted by each individual EU Member State and incorporated into its own respective national law. Only then will we have a better understanding of the implications of the EU Copyright Directive.

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Notes

1. European Parliament / Plenary, Results of votes | Votes | Plenary | European Parliament, http://www.europarl.europa.eu/plenary/en/votes.html?tab=votes (last visited Nov 8, 2018).
2. In the US, however, copyright protection subsists in original works of authorship upon fixation in any tangible medium of expression, now or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 17 U.S.C. § 102. Originality is comprised of two elements: (1) that the work be independently created by the author and (2) that it possess at least some minimal degree of creativity. Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991). Copyright protection is automatic; however, copyright registration with the U.S. registration office may entitle the copyright holder to seek statutory damages, attorneys’ fees, and costs in federal court. Id. § § 411- 412.
3. The EU copyright legislation, Digital Single Market, https://ec.europa.eu/digital-single-market/en/eu-copyright-legislation (last visited Nov 8, 2018).
4. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, 2001 O.J. L 167/10. In the US, copyright holders have the exclusive rights to reproduce the work, prepare derivative works based on the work, distribute copies of the work to the public by sale or other transfer of ownership, and perform the work publicly. 17 U.S.C. § 106.
5. Digital single market, European Commission (2015), https://ec.europa.eu/commission/priorities/digital-single-market_en (last visited Nov 8, 2018).
6. Id.
7. Modernisation of the EU copyright rules, Digital Single Market, https://ec.europa.eu/digital-single-market/en/modernisation-eu-copyright-rules (last visited Nov 8, 2018).
8. Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, 2017 O.J. L 242/6.
9. Regulation (EU) 2017/1563 Of the European Parliament and of the Council of 13 September 2017 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled, 2017 O.J. L 242/1.
10. A “directive” is a legislative act that sets out an overall goal that all EU Member States must achieve, and each Member State is free to devise its own laws on how to reach these goals. In comparison, a “regulation” is a binding legislative act that must be applied ‘as-is’ in its entirety. Regulations, Directives and other acts - European Union - European Commission European Union (2018), https://europa.eu/european-union/eu-law/legal-acts_en (last visited Nov 8, 2018).
11. Implementation of the Marrakesh Treaty in EU law, Digital Single Market, https://ec.europa.eu/digital-single-market/en/news/implementation-marrakesh-treaty-eu-law (last visited Nov 8, 2018).
12. Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programme, 14 September 2016, COM(2016) 594 final.
13. Proposal for a Directive of the European Parliament of the Council on copyright in the Digital Single Market, 14 September 2016, COM(2016) 593 final [hereinafter: EU Copyright Directive].
14. Joint statement by Vice-President Ansip and Commissioner Gabriel on the European Parliament's vote to start negotiations on modern copyright rules, European Union (2018), http://europa.eu/rapid/press-release_STATEMENT-18-5761_en.htm (last visited Nov 8, 2018).
15. Id.
16. EU Copyright Directive, supra note 13, at 29.
17. Furthermore, online platforms and copyright holders must “cooperate in good faith” to prevent this infringement from happening in the first place. Id. at 30.
18. Id.
19. Amendments adopted by the European Parliament on 12 September 2018 on the proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market (COM(2016)0593 – C8-0383/2016 – 2016/0280(COD)).
20. Id.
21. Id.
22. Id.
23. Id.