July 3, 2019
Stobbs in the Intellectual Property Magazine - Striking a Balance: the Directive on Copyright in the Digital Single Market
Stobbs in the Intellectual Property Magazine - Striking a Balance: the Directive on Copyright in the Digital Single Market

Striking a Balance: the Directive on Copyright in the Digital Single Market

Julius and Elliot discuss the newly published Directive on Copyright in the Digital Single Market and whether it strikes the right balance between rights holders’ interests and freedom of speech, expression and creation.

On 15 April, the majority of the EU Member States voted to adopt the Directive on Copyright in the Digital Single Market, dubbed by many as the new Copyright Directive. Member States will now have two years to implement the wording of the Directive into national law.

All through its drafting, the Directive has been widely criticised in the media, with the two most controversial provisions, Articles 15 and 17 of the final text (Articles 11 and 13 of the draft text), bearing the brunt of the criticism. Whilst the Directive does go further than previous texts have, before we are too quick to jump on the bandwagon, it is worth taking a step back and looking at the detail of the two most contentious Articles, the wider legal landscape and the likely practical effects.

Article 15 - the ‘link tax’

The first of the two more controversial provisions is Article 15, more commonly referred to as the ‘link tax’.

The effect of this provision is to extend the protection granted by Articles 2 and 3 (2) of Directive 2001/29/EC (the exclusive rights to authorise or prohibit reproduction or the making available to the public) to publishers whose press publications are used by ‘information society service providers’ (ISSPs). ISSPs are defined broadly in reference to Article 1(1) of Directive (EU) 2015/1535, namely ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’. In other words, ISSPs provide online activities at a cost on an individual request basis – online video on demand providers would be deemed to be an ISSP, for example.

There are a number of exceptions to the general rule, such as for private non-commercial use, hyperlinking and use of individual words or ‘very short extracts’ (although this is not defined further).

Protection granted under Article 15 lasts for two years after the press publication is published, calculated from 1 January of the year following the date on which that press publication is published, and won’t apply retrospectively.

Finally, and what appears to be behind most of the stir for this Article, it provides that Member States shall provide that authors of works incorporated in a press publication, receive an appropriate share of the revenues received by third party publishers who use their publications on ISSPs.

The concern seems to be that the effect of this provision is that it will lead to less information and fewer resources being available through ISSPs, however is this practically likely to happen? We are not convinced. Our feeling is that little will change in terms of available resources, and that the main practical effect is that if a secondary news-provider wishes to use a party’s press publication, they will seek a licence, which could be non-exclusive and royalty free, or it could come at some cost. Whether this cost is then passed on to the end consumer will most likely depend on how that secondary news-provider earns revenue, for instance a free service focusing on advertising may not pass it on, whereas a provider with a paid-for service/subscription model may be more likely to work in some cost recovery.

Article 17 - the ‘upload filter’

The other of the two controversial provisions is Article 17, dubbed the ‘upload filter’.

This provides that online content-sharing service providers (OCSSPs) must obtain authorisation from the rightsholder(s) of any work(s) uploaded by its users, for which access is provided to the public. OCSSPs are defined broadly to include most, if not all, content-sharing service providers such as YouTube, Twitch, etc.

Most contentiously, it also states that if no authorisation is granted, the OCSSP itself will be liable for the unauthorised acts of communication to the public. This is unless they can show that they have: (1) made best efforts to obtain authorisation; (2) made best efforts to ensure the unavailability of specific work(s) the rightsholder(s) have identified; and, (3) acted expeditiously having received a sufficiently substantiated notice from the rightsholder(s) to remove/disable access to the work(s) and prevent future uploads of the same.

As with Article 15, there are carve-outs and exceptions here such as a threshold of new OCSSPs (< 3 years old, with an annual turnover of < €10m), as well as for the purposes of quotation, criticism, review, parody, amongst others.

Whilst the OCSSP should be performing the actions in 1-3 already, the practical effect of this provision is to shift the burden onto the OCSSPs at an earlier stage (at upload by users). The provision therefore requires OCSSPs to be pro-active rather than re-active, taking the pre-upload screening by OCSSPs a stage further.

Is this provision all that bad then? Perhaps not - whilst OCSSPs will have to adopt more stringent screening processes, rightsholders will have a greater level of confidence in the proper and effective maintenance and enforcement of their rights. Practically, again, we are likely to see licences by rightsholders to content-creators and perhaps even whole OCSSPs for specified purposes, particularly where a large part of the marketing by some rightsholders is conducted through online content creators.

Striking a balance?

The discussion is more one of a philosophical debate as opposed to a legalistic one. The question is whether this new Directive strikes the appropriate balance between, rightsholders’ interests, on the one hand, and freedom of speech/expression/creation, on the other.

The Directive tips the scales back towards balance, in favour of the rightsholders, but it remains to be seen precisely how it will be implemented by the various Member States and exactly what practical steps will be adopted by the different parties affected by the Directive.

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Designs & Copyright

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