On 14 September 2018, the European Parliament voted to pass the controversial European Union Directive on Copyright in the Digital Single Market (‘Copyright Directive’). This new law is designed to update existing copyright laws for a digital age of dominant social media platforms and search engines. Well overdue, some say. And yet, the treatment and wording of certain Articles has been the subject of significant debate. While the amended version of the Copyright Directive comprises some 17 individual articles, the most substantial and controversial matters are contained in Article 13 and Article 11, respectively dubbed “the meme ban” and “the link tax”.
In simple terms, the Copyright Directive places more responsibility on online platforms such as YouTube, Facebook and Twitter to stop the spread of copyrighted material on their platforms, and to remunerate the creators whose content largely supports their ad revenue business models.
Under current laws in the EU, platforms must remove content when directed to do so by the rights holders. Provided they comply, the platforms are not responsible for the resulting copyright violations.
The situation is similar in Australia. Pursuant to amendments to the Copyright Act, a system of “notice-and-takedown” applies for certain ISPs which is intended to protect copyright owners.
The proposed EU Copyright Directive seeks to make platforms and aggregator sites liable for copyright infringements, regardless of whether they have received a take-down notice. This includes direct reasonable remuneration from the tech giants to content owners. Supporters of the Copyright Directive argue that the measures address the current inequitable paradigm that tech behemoths receive the benefit of web traffic from content that they have not paid for, whilst creators are charged with the near impossible task of policing their content across the vast reaches of the internet.
Until now, the onus has largely fallen to creators and copyright holders to enforce copyright protection. Whilst platforms have required as part of their general terms that users of their technology who transmit content warrant that they have the necessary rights to distribute it, under the Directive, this responsibility is now heightened and rests with the platforms themselves.
At the heart of the Directive on Copyright are two divisive articles, Article 13 and Article 11.
The Copyright Directive’s most controversial component is Article 13, which states in part that: “…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.”
In effect, Article 13 requires online platforms to filter or remove copyrighted material from their websites. Some say this effectively requires platforms to ban memes. A meme is a piece of content that is generally a parody of a copyright work. They are usually considered humorous in nature and is shared virally between users on social networks and other platforms. Under relevant laws, memes can receive copyright protection as parodies, though in practice the nature of Article 13 means that platforms are obliged to act conservatively, and block memes when there is any doubt as to whether they infringe the original copyright work.
Whilst in essence the take-down obligation is clear enough, debate has ensued over how platforms are expected to identify and remove rights-protected content. An earlier version of the Directive referred to “proportionate content recognition technologies”, suggesting platforms should use filters to scan every piece of upload content for copyright protection.
The latest version of the Directive removes this phrase and inserts an exception stating:
“special account shall be taken of fundamental rights, the use of exceptions and limitations as well as ensuring that the burden on SMEs remains appropriate and that automated blocking of content is avoided.”
Whilst the legislation is not intended to catch memes which are protected from copyright infringement, opponents argue that if automatic filers are used, they will not be sophisticated enough to distinguish parodies from copyrighted-protected material, so valid copyright work memes will inevitably end up being repressed from publication.
The purpose of Article 11 is to oblige news aggregator sites, such as Google News, to pay publishers for publishing excerpts of their articles on their platforms. Press publications “may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers”, the Directive states.
There is no practical guidance as to how this would work. How much of a news article may be excerpted before a platform has to remunerate the owner? The Directive states that “mere hyperlinks which are accompanied by individual words” are excluded from the commercial model. However, most links are currently accompanied by more than a few individual words. Further consideration of this is required.
The Directive exempts “legitimate private and non-commercial use of press publications by individual users.” However, at what point would influencers with large followings cease to be characterised as a “private and non-commercial” entity?
Another controversial Article, and one which may directly affect the online social behaviour of sports fans, is Article 12a. This could be interpreted to stop anyone other than the official organiser or rights holder of a sports match from posting any videos or photos of that match. This could put a stop to viral sports GIFs and might even clamp fans from posting their own photos to social media.
Speaking broadly, those in support of the Directive are industry bodies and commercial organisations representing content producers. These include the Society of Authors, the UK-based Alliance for Intellectual Property and Proponents, Universal Music Group and Warner Music Group.
Opponents include powerful Silicon Valley lobbying group, the Computer and Communications Industry Association (‘CCIA‘), whose members include Google, Facebook, eBay, Amazon and Netflix. Despite the Directive including an exception that explicitly excludes Wikipedia and GitHub from these rules, both organisations oppose the Directive. YouTube is by far the most vocal critic of Article 13, arguing that Article 13 “threatens hundreds of thousands of creators, artists and others employed in the creative economy.”
In Australia, under the Copyright Regulations 2017, if a carriage service provider (i.e. internet service provider) (‘CSP’) receives a notice of claimed infringement (‘take down notice’), the CSP must remove or disable access to the copyright material. Under the Copyright Act 1968 (Cth) “safe harbour” provisions shield CSPs from liability for the infringing actions of their users, provided the CSP takes steps to comply with take down notices issued by copyright owners to the CSP.
Notable CSPs that are currently shielded by safe harbour provisions include Telstra, Optus, Vodafone, Dodo and iiNet.
The Copyright Amendment (Service Providers) Act 2018 came into force on 29 December 2018 extending the safe harbour provisions to educational institutions and libraries, as well as the disability, archive and culture sectors. The government had initially proposed a wider extension of the safe harbour provisions to service providers that use internet infrastructure like Google and Facebook, due to the large volumes of user-generated content on their platforms. However, this was strongly opposed by content creators and licensees, including ARIA, Foxtel and News Corp who argued that the safe harbour provisions should be limited to passive service providers and not commercial online services.
The Copyright Directive is not black letter law yet. It must still pass through the “trilogue process”, where the European Commission, Parliament and Council negotiate the final wording of the Directive, and it is stalling as EU member states cannot agree on final drafting. If and when the Directive on Copyright passes, all EU member states must in due course pass their own domestic legislation in line with the terms of the Directive.
In order to pass through the current “trilogue process”, the Directive requires support from a minimum 55% of Council members representing at least 65% of the EU population. With European Parliament elections taking place at the end of May 2019, and with this legislative session ending in April, it is possible that the passage of the Directive will pass into the next legislative session with new MEPs.
The EU Copyright Directive, alongside the GDPR, represents the EU’s goal to implement a suite of legislative reforms for the reality of data usage today. Such copyright laws have the potential to radically change the way we consume media. While some believe this will throttle online content creation, others believe it is simply an overdue legislative change to apply to internet media the rules that have long applied to conventional publishers. The EU may prove to be a trailblazer in transforming the state of global copyright legislation.
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