The Copyright Directive: What does it mean?

The Copyright Directive: What does it mean?

ROAST • 14/09/2018

What did the EU just do?

The EU Parliament has today voted decisively in favour of the Copyright Directive – a controversial law (and one, I expect, that will become more controversial as it becomes implemented) which attempts to control the use of copyrighted material on the internet within the borders of the EU.
Critics are particularly concerned with two articles of the law: Article 11, dubbed the “Link Tax”, and Article 13 “The Upload Filter”. On the surface these articles appear to be working for the little guy, but, as with many laws things aren’t always so cut and dry, and many critics are calling this law “a GDPR for Copyright” or even ‘the end of the free market internet’. Is it really that bad?
“The Link Tax”
Article 11 of the Copyright Directive seems to aim down the sights at tech giants such as Google and Facebook. From the EU Parliament website “Tech giants (read: Google, Facebook, YouTube, etc) must pay for work of artists and journalists which they use”.
What this seems to suggest in practice is that companies like Facebook, YouTube and Google will be required to pay artists, musicians, authors, news publishers and journalists for their work. Interestingly, the directive “specifically requires that journalists themselves [emphasis author’s own], and not just their publishing houses, benefit from remuneration stemming from this liability requirement”.
The directive “would also apply to snippets” in an apparent direct attack on Google’s Featured Snippets, with the provision that Google must pay licenses to use the content. However, Google could simply refuse and instead decide to exclude that work from the search engine entirely.
“The Upload Filter”
Again, this article has websites such as YouTube in front of mind. The idea is that these sites must take greater responsibility for their uploading content which is in contravention of copyright laws.
So, no more unofficial “Michael Jackson Greatest Hits” or lyrics videos on YouTube anymore – but how is it policed? The bill outlines that the platform must do this themselves. In addition, the EU Parliament website states that any method of tackling this fresh challenge “must be designed in such a way as to avoid catching “non-infringing works””.
Furthermore, the platform must use staff, not algorithms, to determine what is and what isn’t in breach of copyright. YouTube will certainly have their work cut out, considering the sheer volume of material uploaded to their site daily from EU member states. Presumably the ruling against the use of algorithms is to inspire a sudden shift in workforce hiring from these companies within the EU, perhaps in an attempt to reconcile the quantity of money that these sites avoid paying in tax to countries they operate within. But, as with elements of the Link Tax, it doesn’t go as far as stating that aim explicitly and could quite easily fall shy of achieving that goal.
The Upshot:
‘Are the EU banning memes?!’ – in short, the answer is a firm no. Essentially what this directive should boil down to is giving creatives the power to claim payment when they find their content being used by big sites.
For those worried about the nature of the free internet – The EU makes it clear that hyperlinks “accompanied by “individual words” can be shared freely, and that “small” platforms are excluded – and so too are sites such as Wikipedia and other open source platforms, many of which encourage User Generated Content.
The bill attempts to reconcile small publishers for the use of their work, it leaves something to be desired. The bill certainly displays the EU’s umbrage with Tech Giant internet dominance, going so far as to use Googles own terminology for “snippet”, yet it doesn’t go so far as to specifically state the minimum length of a “snippet”. It doesn’t even go into much detail about the size of a “small” publisher, or what should happen if a small publisher suddenly becomes large – will it then have to obtain permissions for the work already written? And what about comments section or forum chat on news sites? Who picks up the bill for these?
The Copyright Directive could end up serving opposite ends than the EU hoped for, with large brands and publishers receiving the lion’s share of interest from Google, as it largely ignores smaller sites who refuse permission to use content.
It may well be that the sites being targeted in the bill can simply shrug the new restrictions off and exploit a loophole or new method of business. It will certainly be interesting to follow how this new power evolves over time.