This April, the relevant EU institutions finalised the controversial Directive on Copyright in the Digital Single Market (the "Directive")1, which came into force on 7 June 2019. The draft of this legislation has been sitting on the EU's desk for several years and – unlike most other EU law – has also caught the attention of the general public. If you want to know why the Directive is likely relevant for you too, continue reading.
Officially the Directive aimed to adapt the existing allegedly
obsolete EU copyright framework to better fit the digital economy.
Artists, musicians, publishers, movie studios, record labels,
collecting societies and other owners of copyright or related
rights especially complained that most of their hard-earned profits
go to those participating in the (often illegal) digital sharing of
these creative works (the so-called "value gap").
To address these legitimate concerns, the European Commission came
up with ancillary copyright of press publishers against news
aggregators2 and with content upload filters for
the operators of online peer-to-peer content-sharing
platforms.3 These provisions turned out to be a
couple of political hot potatoes, which caused almost unparalleled
controversy. The new rules were often criticised as being flagrant
examples of censorship in the digital web which knows no
boundaries, no rules and no copyright. Or does it? Internet
companies invested a lot of money and effort in free speech
activists and internet users whose protests culminated in
demonstrations in Berlin, Munich and other major European cities
just before the EU Parliament vote.
Link tax
This is what the opponents nicknamed the new licence (fee)
required by social media platforms, search engines and other
internet-based platforms (such as Google News) for the online
display of articles, books or other press publications. The right
of the press publishers to demand such a fee expires two years
after the publishing of the relevant publication. The publishers
must share the income from these obligatory licences with the
creators of the works incorporated in such publications, such as
authors, photographers, illustrators, etc.
Lawyers tend to say that the devil is in the detail or, in this
case, in exceptions from the above-mentioned rules. In general, the
exceptions follow the case law handed down prior to the
Directive.
For example, the "online use" of the press publication
does not include the mere publishing of a hyperlink to such a work
published online by someone else4 as long as that
first publication was legitimate. In other words, the exception
will not protect you if you publish links to a pirated version of
the publication available online. Given the vague wording of
Article 15, it remains to be seen what effect it will have on
the established CJEU case law on hyperlinking, such as GS
Media5 or Svensson6.
Another exception covers "individual words or very short
extracts" of original published works, which internet
platforms may share online free of charge. But how short is a
"very short extract"? Is it one or two sentences, or
perhaps a page? The rather unsatisfactory answer is: it depends.
For example, on the length of the original publication. If the
publication means one short three-paragraph poem, then a two-line
"news snippet" could be too long. On the other hand,
publishing a two-page summary of a 1,000-page book could be
legitimate. We will have to adopt the wait and see approach
here.
Politically, the above-mentioned wording of the Directive may be a
victory for internet platforms, because it essentially copies the
previous case law (particularly German). The publishers were
certainly hoping and lobbying for a much narrower exception.
Preventive censorship
That is how Poland's Deputy Foreign Minister Konrad
Szymanski referred to the "upload
filter"-provision7, arguing that such actions are
"forbidden not only in the Polish constitution but also in the
EU treaties". Czech politicians were far more cautious,
although some representatives of the Pirate Party called the
provision a "back pass of politicians to the copyright
lobby" that will impose "robotic censorship" on
everybody.
All rhetoric aside, the wording of this provision is so broad that
it indeed may be seen as an obligation by internet sharing
platforms to use content upload filters to prevent illegal
materials (protected by copyright) from being shared among
individual users without the authorisation/licence of the copyright
holder.
Again, there are significant exceptions or loopholes, which the
targets of this obligation will seek. For example, the term
"online content-sharing service providers" will likely
include YouTube, Facebook or Twitter and other major online
steaming platforms or popular social media platforms. On the other
hand, internet service providers, online marketplaces (including
major ones, such as Amazon), non-profit online encyclopaedias (e.g.
Wikipedia) or personal cloud services will fall outside the
above-mentioned definition.
In addition, the sharing providers will in theory need licences
from every copyright owner in the world. Because this is unworkable
in practice, the Members States implementing the Directive will
likely include collecting societies in these schemes to represent
the copyright owners. This approach can be expected in the Czech
Republic as well, because collecting societies have a very
efficient lobby across most parties in the Parliament.
Finally, the safe harbour8 exempts platform
operators from liability for copyright infringement if they (i)
made best efforts to obtain an authorisation, (ii) made best
efforts to ensure the unavailability of works based on a relevant
take-down notice of the rights holders, and (iii) took down the
infringing content quickly and made best efforts to prevent further
uploads of the same problematic content.
Also, new and small sharing platforms, i.e. those operating for
less than three years, having annual turnover below EUR 10m
and an average number of monthly visitors below five million, will
not have to "make best efforts to ensure the unavailability of
specific works ... in accordance with high industry standards of
professional diligence". But others will have to comply and
only time and judges will distinguish the "high industry
standard" filters from others.
Summary and outlook
The Directive certainly represents a shift from the currently
widespread policy of "notice and take down", which was in
place not only in the EU but also in the US. On the other hand, the
practical impact of the "link tax" will probably not be
as significant as the right holders expected several years
ago.
All EU Member States must implement these new rules in their
national laws by 7 June 2021. We will see how creatively
they will use the discretion left by the EU legislators in the
Directive. Recently, the relevant Czech regulator, i.e. the
Ministry of Culture, announced the beginning of discussions with
relevant stakeholders and experts. Judging from the recent
experience with the implementation of the GDPR9, the
Czech Republic will not be among first to implement and will not
work very creatively with the given discretion. We will be
following the implementation process, so stay tuned.
Footnotes
1 (EU) 2019/790.
2 Article 15 of the Directive.
3 Article 17 of the Directive.
4 See Article 15 (1) of the Directive.
5 C-160/15.
6 C-466/12.
7 Article 17 of the Directive.
8 Article 17 (4) of the Directive.
9 General Data Protection Regulation (EU) 2016/679.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.