THE EU DIRECTIVE ON COPYRIGHT IN THE DIGITAL SINGLE MARKET
April:
Back in October 2018, we wrote about the European Parliament’s proposed Directive on Copyright in the Digital Single Market – a new law intended to protect an individual’s content and pass copyright responsibility to the big platforms that host and monitor this material – and the huge implications it would have for all internet users if passed.
On Tuesday 26th March 2019, the Directive was voted in by 348 MEPs to 274 against, and the updates are being compared in scope to 2018’s GDPR changes to privacy regulations. So what does this mean moving forward?
October:
In September 2018, 751 members of the European Parliament voted to pass the newest Directive on Copyright in the Digital Single Market, a new law intended to protect an individual’s content and pass copyright responsibility to the big platforms that host and monitor this material. In other words, Instagram and YouTube would become responsible for the content hosted on their platforms rather than creators/influencers.
Within this directive there are two particularly controversial articles, Article 11 and Article 13, circulating under names of “link tax” and “meme ban” respectively; big news aggregators, such as Google News, would be charged a fee to link to an article and the responsibility of copyright infringement would shift from the creators to the networks.
Unsurprisingly, there’s been a fair amount of pushback with networks claiming this will completely discourage users from uploading content, and that the legislation dismisses the positive value of these aggregator shares for the artists whom they are trying to protect. However, look to the supporters, and it’s clear that this isn’t a censorship enforcement; rather, it’s a fairly understandable demand for better control of how copyrighted content can be shared and in doing so, fairer and more transparent remuneration to the original source.
April:
On 26th March 2019, the European Parliament voted in the Directive on Copyright in the Digital Single Market, including the intensely debated Articles 11 and 13, despite protestations from Google and internet freedom activists.
While the relevancy to British users has been questioned because of the UK’s tentative status within the EU, as well as the two year lag between the vote and member states implementing the directive into their own laws, it is crucial to note that British businesses offering their services within the EU in the future will still have to comply.
October:
To share or not to share? The EU Directive on Copyright in the Digital Single Market
In September 2018, 751 members of the European Parliament voted to pass the newest Directive on Copyright in the Digital Single Market, a new law intended to better protect an individual’s content and pass copyright responsibility to the big platforms that host and monitor this material. Though originally rejected back in July, a second hearing saw the directive passed this September and a final discussion in Spring 2019 next year will determine the fate of digital copyright.
In short, it’s been introduced to level the playing field between tech giants and creators, shifting the onus of copyright responsibility from the individual creators to the platforms, thus holding the likes of Facebook (Instagram), YouTube and Google to account in order to monitor and restrict the spread of illegally copyrighted content. Within this directive, there are two particularly controversial articles, Article 11 and Article 13, circulating under the aliases of “link tax” and “meme ban” respectively. The “link tax” would demand a fee from the networks and big news aggregators, such as Google News, in order to share a link to a news article. The “meme ban” essentially refers to the limiting, or even prohibition, of illegally reproduced images or content used to create these viral sensations.
Unsurprisingly, there’s been a fair amount of pushback, with networks claiming this will completely discourage users from uploading content and that the legislation dismisses the positive value of these aggregator shares for the artists whom the politicians are trying to protect. In their eyes, the share-ability of content is also the best form of peer-to-peer promotion and has paved the way for successful careers for thousands of celebrities.
However, though we’re very quick to jump to the defence of the platforms, it’s important to remember that our free access to content and entertainment is very much a privilege, and one that hasn’t necessarily been granted by the creator. Similarly, the content in question is almost impossible to police at viral level, particularly not by an individual with limited resources. What the Directive on Copyright seeks to enforce by shifting this responsibility is better control of how copyrighted content can be shared and in doing so, an attempt to make remuneration to the original source fairer and more transparent.
Filter vs. Freedom
The two major points of contention of the Directive on Copyright are their very aptly unlucky number articles, Article 11 and Article 13.
Article 11, dubbed the “link tax”, sets about requiring a fee from the platforms for sharing links to news articles, which in turn aims to close the value gap and encourage quality journalism with appropriate remuneration. News aggregators, such as Google News, are believed to have caused huge disruption to this value gap, taking journalists’ content and collating it into their own news offering, without appropriate permission or credit back to the original sources. Whilst a series of Chinese whispers have suggested that this could impede individuals from sharing news content, look to the directive and it clearly explain that it “shall not prevent legitimate private and non-commercial use of press publications by individual users”.
It should also be noted that the wording of the directive also specifies that journalists themselves, and not just their publishing houses, benefit from remuneration that will stem from this liability requirement. Furthermore, do bear in mind that it is not the case that the mere presence of the article online from other sources will be subject to fees; sharing hyperlinks to articles with individual words to describe them will not fall under the directive’s fee structure. Yet with that comes a whole cloud of ambiguous definitions around the words “snippet, few and couple”. As Julia Reda, MEP for the Pirate Party notably points out in an interview with The Verge: “This hyperlinking exception would not work online because no one clicks on a URL that doesn’t include a brief description of what it’s linking to”.
Article 13, dubbed the “meme ban”, moves the responsibility to police copyrighted content from the individual to the platforms on which this material is hosted. As the article reads: “online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services”. Though perhaps on the surface, this suggests that there’s no more opportunity to upload home-sung covers of your top songs, it’s a little more in favour of any creator, both original and secondary, than that.
The key point here is the great shift in responsibility and accountability – it’s not the individuals recording songs in their garage that risk being sued, but rather the platforms on which the content is uploaded. The decisions on whether creators wish to earn money through a copyright license or not will lie with licensing contracts between themselves and the platforms. The European Parliament was keen to express that this was a free choice given to the creators on whether they wished to enforce it or not for their own content.
In a press conference given shortly after the September 2018 passing of the directive, Helga Trupel, MEP, explains that this directive is not about censorship, but rather to make the internet a fair place again. Indeed the words “upload filter” have been removed from the directive and exemptions have been made to exclude sites such as Wikipedia and GitHub from falling foul to content screening of this sort. Smaller, independent platforms will also be excluded from the directive, with the EU Parliament conscious that they may not have the resources to implement a filtering system that will be required for the big networks if the directive is introduced. Regarding Article 11, she highlights that though many were in favour of paying journalists for their work, few proposed a strategy of how. Cue the new Directive.
In support of Article 13, it’s important to consider that it’s intention is not to close the lid on creative freedom, but rather to make sure that it is not a free-for-all resource that quickly runs dry. Essentially, in the eyes of the EU Parliament, this new Directive will enforce a clear structure on making sure that individuals are appropriately valued in monetary recompense and that their original content is protected accordingly.
Read all about it…Or don’t
We’re all hugely conscious of the massive impact and subsequent attempt to clean up the internet’s explosion of “fake news”, and enforcing a piece of legislation to limit news aggregators from unduly sharing and collating articles may well help to aid the process. After all, if aggregators are not willing to pay the fees to journalists which allow them to include these articles, they consequently will be unable distort the source via their own newsrooms.
However, on the flip side, these aggregators are arguably paramount to increasing readership and exposure for journalists and a barrier on the spread of the articles in question through digital shares may well negatively impact the material’s reach. Not so great then for budding journalists who actually benefit from the networks’ boost. Resources are nation-specific and you only have to look to examples of similar initiatives introduced in Spain and Germany, where when Google News refused to pay the fees and consequently shut itself down, local aggregators couldn’t then afford to pay these. The result? Readership dropped significantly and traffic hit devastating lows.
Yet, what seems obvious here is that this is an issue relevant to a specific tier of creator, those where the sharing benefits have taken a noticeable shift from extremely positive, to outright negative, devaluing their content and making it less and less traceable to its original source. Acknowledge the supporters – leading screenwriters, directors and major record labels – and they have a point; speak with the rising stars, often whose lucky break, and consequent fame and fortune, is made just that bit more probable by the wonders of digital sharing, and you stand with the critics.
What happens next?
This type of legislation is brought in to set objectives for EU states to work from, and if officially passed in Spring 2019 after a series of trilogues (three-way dialogues), all EU states will be expected to enforce these in line with the directive within two years. How these are enforced will be dependent on each member state’s agenda, and let’s not even talk about how the UK intends to address it…
For the networks a rebuttal is understandable purely from a logistical perspective. Regardless of their opinion on the legislation itself, the cost of creating infrastructure to manage these potential changes would be enormous and may result in them having to charge users for accounts in order to recoup the expenditure.
When the vote occurs, rejection is unlikely, though opposition to specific amendments was closer than the overall majority vote that passed the legislation. However, what is certain is that this new directive will cause a substantial shake up to the Internet, challenging the grip of big tech companies and calling them to account for the content uploaded on their platforms. If, as they say hand-on-heart that community lies at their core, surely protecting this content and remunerating individuals accordingly should be at the top of their list of principles?
If you’d like to hear more about legislation and legal declaration, join us at our upcoming summit, Influencer Marketing Under One Roof – Autumn 2018, where top legal house Kemp Little will be delivering a presentation on the direction of copyright infringement for the future of digital.
Full event details and tickets can be purchased here:
https://www.eventbrite.co.uk/e/influencer-marketing-under-one-roof-autumn-2018-tickets-42902838545