On 12 September 2018, the European Parliament passed a draft of the controversial directive on copyright in the Digital Single Market (“Directive”). Its current wording is a compromise solution after an unsuccessful vote in June.
While authors, newspaper associations and editors welcome the Directive, its opponents call it an unprecedented step and warn against internet censorship.
Critics specifically target two articles, namely articles 11 and 13, even in their revised wording.
Article 11 ‒ originally also called “link tax” ‒ regulates the protection of press publications concerning digital uses. It aims to compensate authors whose articles or parts thereof are spread freely on the internet (e.g. via Google) for lost profit.
As a reaction to the critique, the European Parliament voted on a change and expansion of the Directive. This states that the press publication right does not extend to mere hyperlinks which are accompanied by individual words, and that this new neighbouring right of press publishers does not prevent individual users from enjoying legitimate private and non-commercial use of print media and publications.
Article 13 ‒ also called “upload filters” or “meme killer” ‒ regulates the use of protected content by online content-sharing service providers storing and giving access to large numbers of works uploaded by their users (so-called online content sharing providers, e.g. Google, Facebook, Youtube).
This means that if a social network user wants to upload a photograph, the online platform (e.g. Google) would be obliged to check with content filtering software whether they are in breach of copyright. If an automatic algorithm recognizes copyrighted content in the picture, the social network could not publish it. The Content ID on Youtube works on the same principle.
Opponents worry that these steps will lead to internet censorship. Online media also frequently state the misleading information that the Directive will ban memes. This is not true.
However, although parodies, picture montages or video montages, satirical articles, internet memes, comments or reviews are covered by the copyright exemptions so their use does not require the author’s consent, opponents of the Directive are worried that the algorithms cannot detect what is parody, whether something is fair use, or even if something is just a video someone made for fun rather than to make money.
As a reaction to the critique, the European Parliament voted on a change and expansion of the Directive by making exceptions for various entities to which the relevant article will not apply – micro platforms and small platforms acting in a non-commercial purpose capacity, online encyclopaedias like Wikipedia or online markets for natural persons.
The Directive was passed at the first reading. Now, negotiations on its final form will follow with the member states and the European Commission.