MAY 2019 | AROUND THE ABA

EU copyright reform — what’s so controversial?

On March 26, the European Parliament approved sweeping changes to the European Union’s nearly two-decades old copyright regulations – reform that many say will have a profound impact on the internet as we know it.

Meant to address the prolific online use of protected digital content, the Directive on Copyright in the Digital Single Market (DSM) was passed after more than two years of ferocious lobbying with 348 parliament members voting in favor of the new law and 310 against it or abstaining from the vote, reflecting the controversy surrounding the reform.

Shortly before the vote, intellectual property litigator Sarah Blair of Bristows LLP in London authored an article for ABA Landslide magazine, “Europe’s Copyright Reform: What is so Controversial?” in which she details the long road to adopt the law.

In it, Blair says the concerns mainly center around two clauses of the wider regulations that were passed.

Blair breaks down what has folks up in arms:

Article 13 (renumbered as 17 after a recent update) puts the onus on certain online platforms such as YouTube, Twitter and Facebook to ensure that infringing content isn’t available on their services.

Such platforms have thus far relied on law that “exempts internet service providers from liability for infringements taking place on their services of which they have no knowledge or control,” Blair explains. Under that directive, providers also had no obligation to investigate the illegal activity.

With passage of DSM, “those falling within the [new] directive’s definition of online platforms may no longer be able to rely on these exceptions and will become liable for the infringing activity of their users,” Blair says.

Earlier drafts of the bill mandated that platforms implement measures to prevent infringing content from being available, such as the use of content recognition technologies. Fierce lobbying followed over concerns that such technology would amount to automated surveillance and stifle the sharing of content. And as a result, prior to the final vote, “the reference to specific filtering measures was removed from Article 13 and replaced with an obligation to cooperate in good faith,” reports Blair, who notes that further amendments narrowed the article’s scope to exclude non-commercial entities, personal cloud platforms and certain small-to-medium sized enterprises.

Still, the changes haven’t silenced critics. While most acknowledge that the clause is well intended, many insist that it is too vague and “good faith” measures may still lead to the use of filters, stifling the free exchange of information that characterizes the internet as we know it.

Article 11 (renumbered as 15) grants news organizations more protections to ensure they are compensated for content used by third parties.

The clause allows news publishers to charge platforms that display their content and was put in place “to ensure the sustainability of the [news] industry and to guarantee the availability of reliable information,” Blair explains. 

But she says, “critics of Article 11, on the other hand, are concerned by the chilling effect that it might have on news circulation.”

Some believe that popular news aggregators may decide to just uproot their services rather than face payments for the news they promote.

The threat is real. By national law, Spain granted similar rights to press publishers – and Google responded by altogether withdrawing its news service there, reports Blair. 

Germany passed a similar national law, too, but its intent to better compensate news organizations also failed. In response to the law, Google simply had newspapers waive their rights by asking them to opt into its service.

On April 15, the European Council gave final approval of the Directive on Copyright in the Digital Single Market. Member states now have two years to pass appropriate legislation to meet the directive’s requirements.

Read more about the Directive on Copyright in the Digital Single Market in Blair’s article, “Europe’s Copyright Reform: What is so Controversial?” 

Landslide Magazine is published as a member benefit of the ABA Section of Intellectual Property Law. Explore other benefits of IP Law section membership

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