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March 28, 2019updated 13 Jul 2022 10:17am

EU Copyright Directive Article 13: Opinions Still Divided

Despite all the debate, details remain unclear.

By CBR Staff Writer

In a move that will represent one of the biggest changes in how organisations interact with the internet, users and content since the implementation of GDPR last year, the EU parliament this week has voted in favour of the controversial Copyright Directive.

Yet it still remains an incredibly divisive issue and as each individual EU member State debates how to implement the new EU law into their own legislation, it will continue to draw criticism and, in smaller amounts, praise from all corners.

One of the central parts of the Copyright Directive is Article 13, which puts greater responsibility on websites to police the content they display; ensuring that it is in line with copyright and licensing agreements.

Read this: European Commission’s Copyright “Mob” Comment Triggers Outrage, an Apology

If a website has provided its users the ability to upload instantly visible content then the site will bear the brunt and consequence of any copyright infringing material. And not everybody is implacably opposed…

Dr. Ole Jani, a partner at global law firm CMS told Computer Business Review: “The vote paves the way for the much-needed modernisation of European copyright law. The directive strengthens the rights of those who create content, such as journalists, and those who make such content possible through their entrepreneurial commitment.”

“Online platforms will finally be obliged to acquire licenses for the content they publish online. The Copyright Directive is an important building block for the long overdue regulation of the platform economy, in which market power is increasingly supplanting the primacy of law.”

Copyright Directive Article 13 The Danger for SMEs

One of the key concerns expressed by those who opposed the Directive was that it would require all platforms to implement filtration systems similar to those used by YouTube. YouTube’s Content ID scans everything uploaded to the site and actively removes material which it believes has been used without permission. Over 300 hours of video are uploaded to the platform every minute, so this is no easy task.

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Any mention of filter systems has been removed from the final bill. Yet sections of the bill state that any platforms that have existed for more than three years or have an annual turnover of more than €10 million will have to make “best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information.”

What constitutes “best efforts” appears to be an open debate still.

Mike Shaw, Partner at Marks & Clerk a London-based intellectual property service warned Computer Business Review that SMEs cannot ignore this week’s vote and that they need to understand the implications of the Directive, such as the section highlighted above: “In due course smaller digital platforms [may be] faced with introducing costly software to monitor for infringing material, or artificially limiting business growth to stay within the limits set by the directive,” Shaw warned.

“SME’s found to be in breach of these limits, and hosting copyrighted material, could find themselves on the wrong side of the law.”

“This Directive has pitted online platforms against copyright owners globally, and the same divisions will be present within the SME community – some will perceive this as an important safeguard against intellectual property theft, others will see it as introducing burdensome requirements that could have a serious business impact on those without deep pockets.”

Art Is a Urinal in New York

One of the key debates online about Article 13 revolved around the creation of Memes, GIFs and animated short video clips which are shared on platforms such as Twitter, Facebook and Reddit.

Under early proposals of the bill these would have been on the wrong side of the law as they often include scenes or images belonging to films and games.

However, the bill was tweaked so these forms of content were excluded, as they were deemed safe because they are used for the purpose of quotation, parody or criticism.

Yet some creators believe that Article 13 still poses a risk to the way the internet operates and how content is shared.

Rosh Singh, MD of UNIT9 a technology consultancy and production company told us that: “Any move to redistribute the wealth created online back to professional content creators and IP owners should be welcomed.”

Yet he believes that “Article 13 threatens to un-weave the very fabric of the modern web. The democratisation and remixing of content and ideas is at the core of user-generated content and is a fundamental part of culture.”

“Coupled with the upcoming fragmentation of streaming services, the steps being taken by or on behalf of rights holders to better monetise content come at the expense of consumer experience and value. In the long run, this will push us back towards the path of least resistance, and that never ends well.”

When the bill was in an early draft a group who self-describe themselves as the Internet’s original architects and pioneers sent an open letter to the President of the EU Jean-Claude Juncker stating that Article 13 (upload filter) is: “an imminent threat to the future of this global network.”

The letter signed by Tim Berners-Lee, Vint Cerf and a host of other internet architects stated that: “Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.”

Google’s Kent Walker thinks the latest text is an improvement on earlier iterations: “Take Article 13. Platforms making a good-faith effort to help rights holders identify and protect works should not face liability for every piece of content a user uploads, especially when neither the rights-holder nor the platform specifically knows who actually owns that content. The final text includes language that recognizes that principle” he notes, but adds that the directive creates “vague, untested requirements, which are likely to result in online services over-blocking content to limit legal risk.”

The text needs to be clearer to reduce legal uncertainty about how rights holders should cooperate to identify their content—giving platforms reference files, as well as copyright notices with key information (like URLs) to facilitate identifying and removing infringing content, while not removing legitimate material.

Currently the Copyright Directive is still only, as the name implies, a directive and will not come into force until each EU member state brings about domestic legislation to make it an official law. So expect the debate and legal case to continue for a few more years: the devil, as ever, will be in the detail of implementation.

Read More: EU Copyright Directive and Link Tax 

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