As the final draft of the new EU copyright law approaches a crucial juncture, what does it currently affect?
Earlier in February, proceedings around the long-argued EU copyright directive began to move again, after a period of prolonged negotiation.
On Wednesday (13 February), after an intense three-day talking period in Strasbourg, France, the final draft of the contentious law was approved. At this stage, it now needs the approval of EU member state governments in a meeting pegged for next week.
Following this, the European Parliament will vote on the directive in March or April of this year.
Two sides of the EU copyright coin
Many of the people lobbying in favour of the changes include certain media publishers, musicians and music rights firms, who argue that the current copyright rules end up hurting artists and publishers, and devalue creativity.
Those lobbying against the changes argue that they would pose a serious threat to free information exchange online and fair use, and throttle competition among start-ups.
While many freely admit the need for EU copyright laws to be changed (the last alteration was in 2001), two elements of the current alterations have caused some alarm. Articles 11 and 13, known colloquially as the ‘link tax’ and the ‘upload filter/meme ban’ respectively, have been criticised by the likes of Tim Berners-Lee and Wikipedia’s Jimmy Wales.
Tech firms such as Google and YouTube also lobbied against the changes, with the former arguing that they could have “a profound impact on the livelihoods of hundreds of thousands of people”.
Andrus Ansip, EU commissioner for the Digital Single Market, said of the agreement reached: “I’m satisfied but not totally happy. You won’t be able to find anyone who says, ‘Yes I’m totally happy.’ It’s a compromise.”
Article 13 progress?
While many people had worried that Article 13 would lead to the death of the meme, it looks like content uploaded for “the purpose of caricature, parody and pastiche” will be exempt, according to a leaked version of the draft.
Article 13 now says that content-sharing platforms must license copyright-protected material from the rights holders. If this is not done, or is not possible, the platform must show it made “best efforts” to obtain permission and ensure the material specified by the rights holder was not made available.
Platforms also need to act quickly to remove content that infringes on the rules. As Siliconrepublic.com previously reported, exemptions apply to services with fewer than 5m unique monthly visitors and earning less than €10m a year, until they have been in business for three years. Other exempt bodies include non-profit encyclopaedias, but the vague definition of ‘non-profit’ in the draft agreement has people raising eyebrows.
Julia Reda, MEP and outspoken critic of the EU copyright changes, said it will be an “impossible feat” for platforms to purchase licences for anything a user may upload. Others are also worried about the accuracy of algorithms, which may take down content in error.
The Electronic Frontier Foundation (EFF) warned: “Filters will subject all communications of every European to interception and arbitrary censorship if a black-box algorithm decides their text, pictures, sounds or videos are a match for a known copyrighted work.”
Abby Vollmer of open source resource GitHub said “people who use the internet to write, research or work together to build something in countless other contexts stand to lose when snippets of texts come with a price tag and when uploaded content might be unfairly censored”, adding: “So it’s not surprising that these two articles have been so controversial throughout the negotiations.”
What about the link tax?
Article 11, or the link tax, will be open to interpretation by the member states in the EU, which will likely raise the risk of rights holders and platforms alike taking legal action against countries to obtain clarity around what constitutes a “snippet”, which would need to be licensed.
German MEP Axel Voss urged the European publishing industry to group together and come to an agreement with Google around collective licences to create commonality.
Down to the wire
Kathy Berry, professional support lawyer at Linklaters, said: “The copyright directive has been several years in the making, forming a central part of the EU’s Digital Single Market Strategy, which it launched in 2015. It has proved to be one of the most controversial pieces of EU IP legislation in recent history. However, we’re not surprised that an overall compromise has now been reached.
“EU lawmakers have been under very significant pressure to find a compromise in time to adopt the directive in the current legislative term – and before the parliamentary elections in May. If they had missed this opportunity, the directive would likely have been shelved for the foreseeable future and all bets would have been off.”
If the law is passed within the next few weeks, national governments within the EU will have a two-year period to implement the changes it calls for. As the EU elections approach, we may have to wait and see if the public make this a political issue with their MEPs when it comes down to the wire.
Cory Doctorow of EFF wrote: “These elections are critical. The members of the European Parliament are going to be fighting an election right after voting on this directive, which is already the most unpopular legislative effort in European history, and that’s before the public gets wind of these latest changes.”