Negotiations on the final shape of the revolutionary EU Copyright Directive

Following a vote in the European Parliament on the draft EU Copyright Directive in September, talks will now be held to agree on an acceptable compromise for the wording of the most controversial provisions of this piece of legislation.


The new draft EU Copyright Directive responds to the development of digital sharing of copyrighted content. The vote taken in the European Parliament in September this year proved that there is EU-wide consensus as to the principal need for such a directive; the talks that have followed intended to hammer out an acceptable final wording.

The draft made headlines primarily because of Article 11 and Article 13. The former is occasionally (and misleadingly) being referred to as “link tax”. The basic idea behind Article 11 is to grant certain rights of authorship to the publishers of print media, so that they may allow or prohibit the further proliferation in the form of publishing a given work and communicating it to the public via communication technology. This would mean that publishers could directly negotiate with information society service providers (such as Google, Seznam, Facebook, and in particular news aggregators) over licensing fees for putting published works on the internet – something which previously required the contractual assignment of rights resting with the original authors. Article 11 has drawn criticism because, in the last consequence, it gives the aforementioned rights to both authors and publishes, without clearly addressing what rules apply to their mutual relationship. (The modified version which passed first reading in the European Parliament grants the same rights also to the organizers of sports events.)

Under Article 13, information society service providers who put a large volume of copyrighted, user-generated content on the web (such as Youtube, Vimeo, Stream, will be required to monitor the contents uploaded by users and to prevent copyright violations. According to the draft Directive, this is to be done through software tools that recognize copyrighted work and thus allow the service providers to respond to unauthorized uploads. Even now, similar systems are in place e.g. in the form of what is known as “Content ID”, a service promoted by Youtube. The European Parliament has modified Article 13 of the draft by adding a provision to the effect that the upload of works by users equals the public dissemination of copyrighted material.

Detractors have pointed out that filters of this kind used to identify copyrighted work will not be able to properly recognize, among the filtered material, legitimate fair-use quotations and modifications on the basis of licenses under the law. In practice, this could mean, via false positives, that a lawful use of works e.g. in the form of caricature or parody or within the context of news reporting no longer reaches the public.

In addition, this kind of system for monitoring user-supplied content requires a substantial financial investment, and thus represents an entry barrier to the market for information society services. At the same time, the field is already largely under the control of a few powerful players.

To some extent, Article 13 abandons the “safe haven” doctrine established by the hosting provision in Art. 14 of the Electronic Commerce directive, according to which information society service providers are not liable (subject to certain conditions) for information stored by recipients of the service. In this sense, the passage of the EU Copyright Directive will to a greater or lesser degree (depending on the final language) leave a fundamental mark in terms of the regulation of the digital realm.

Position paper for the trilogue meetings on the draft Directive on Copyright in the Digital Market of 26 September 2018 (ST 12513 2018 INIT)

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