Due to rapid developments in technology, online commercial and creative landscapes have changed dramatically including the way in which content is created, produced, distributed and exploited. As a result of this upheaval, relevant EU copyright legislation needed to be updated and future-proofed with a fair balance struck between the rights and interests of users and those of content creaters and other rightholders.
The European Parliament approved the “Directive on copyright in the Digital Single Market” in March 2019 following a process started in 2013 which included numerous studies, impact assessments, discussions, proposals and votes not to mention fierce lobbying from all sides. The directive implements a number of updates to EU copyright law and includes controversial new rules aimed at increasing pressure on Tech giants such as Google and Facebook to fairly remunerate copyright holders.
According to the European Parliament Q&A Press Release, the “directive seeks to ensure that creatives (for example musicians or actors), and news publishers and journalists benefit from their copyrighted content online.
Currently, due to outdated copyright rules, online platforms and news aggregators are able to take financial advantage of online creative content whilst artists, news publishers and journalists see their work circulate without receiving (or receiving minimal) remuneration for it. There is an expectation amongst those who voted in favour of the directive that it will oblige the likes of Google’s YouTube, Google News or Facebook to correctly remunerate artists and journalists whose work they monetise.
Internet freedom campaigners have vocally objected to the directive from its conception over 5 years ago, commonly referring to the changes as a ‘meme ban’. This opposition is fundamentally based on grounds that the directive will limit freedom of speech online, force platform providers to filter user content and generally tighten the grip that Tech giants have over user-posted content.
The most controversial of the changes, Article 17 (formally Article 13) has been described by major news outlets as requiring platform providers to “scan content” and “filter or remove copyrighted material from their websites”. But is this really true?
In a nutshell, Article 17 requires platform providers to obtain authorisation from copyright holders (e.g. through fair and appropriate licensing agreements) and take suitable and proportionate steps to ensure the functioning of those agreements.
Article 17(4) states that where there is no authorisation, platform providers will need to demonstrate that they have proportionately used best efforts to obtain authorisation, make that content unavailable and act expeditiously. The type, audience and size of the service, the type of content as well as the potential cost of compliance will all be taken into account when assessing proportionality.
Tech giants vehemently oppose this Article, with YouTube boss Susan Wojcicki predicting the new rules could “drastically change the internet that you see today” and prompting warnings that viewers across the EU could be cut off from videos. Even in the face of these doomsday prophecies, those on the other side of the fence see a light at the end of the tunnel. Musicians such as Sir Paul McCartney support the changes which “help assure a sustainable future for the music ecosystem and its creators, fans and digital music services alike.”
The wording of Article 17 has no explicit requirement to scan or filter content and the European Parliament have denied creating any censorship obligations. However, despite having undergone several revisions, critics say that the wording of the directive is still ambiguous and companies will be forced to apply a strict interpretation if they wish to avoid fines.
Will this effect your ability to share that meme you found on reddit? In short, no your meme posting abilities remain intact. The directive specifically protects users ability to upload and share works for the purposes of quotation, criticism, review, caricature, parody or pastiche. This is a specific exception to the blanket rule that it is (and has always been) illegal to share copyrighted materials without the authorisation of the copyright holder. The major change that the directive makes it that the platform provider will now be responsible for ensuring that appropriate authorisation is in place for its users to share content and the content creators are fairly remunerated.
The next stage for this directive lies with each Member State which is free to decide how to transpose the goals into national laws.
Christine James
