11 February 2019

Our interaction with the internet is an all-time high and as consumers reliance on it for delivery of services and products and for income generation continues to increase. The monetisation of IP throughout internet usage has increased exponentially in recent times and so the protection required for consumers and creatives has undergone a much needed overhaul in recent times and for creatives, the introduction of the new snappily titled European Union Directive on Copyright in the Digital Single Market was hoped to update existing copyright laws for the internet age to afford greater protection.

This Directive is designed to limit how copyrighted material is used and shared online placing a much greater responsibility on platforms to ensure that the material being used by these platforms does not violate copyright. Currently platforms such as YouTube and Facebook who extract huge profits from the exploitation of content do not have any responsibility for copyright violations happening on their platforms other than the removal of offending content as and when any violation is brought to their attention, a process which is a lot more extracted than it really needs to be and places the onus on the copyright holders to enforce copyright. The new measures would make online platforms and aggregator sites liable for any copyright infringements.

One of the more controversial sections of the Directive centres around the much maligned Article 13. Critics of the Directive, and there are many of these, are warning that these articles will mean the “end of the internet” and have even has its own #saveyourinternet hashtag circulating in order to generate awareness and ultimately gather support for the removal, or severe change of Article 13 from the Directive.

Article 13 aims to make platforms take the responsibility for affecting any take-downs of infringing material. This seems on the face of it a reasonable step, however there is a lot of dissention in the ranks as to how exactly the said platforms are to actually identify and remove any infringing material. The Directive has gone through several versions to date, but an earlier version referred to “proportiot nate content recognition technologies” which to some seen to suggest that platforms will be expected to introduce filters which would in essence have to scan every piece of uploaded material and cross-referencing it against a database of copyrighted material. Now in an ideal world, this seems a sensible approach, but in the real world it opens up massive potential for abuse of the database.

Further issues surround Article 11 which is intending to get news aggregator sites to pay publishers for content used in the articles they post on their platforms. Again a seemingly sensible and fair proposition, but questions arise surrounding how this would be qualified and quantified.

There have been a number of versions of the Directive already and certain compromises have had to be reached including where filters must be uploaded by all internet sites excepunder three conditions:

• Those whose site has been available for three years or less;
• Those sites who have an annual turnover of below €10 Million;
• Where the platform has fewer than 5 million monthly users.

These exceptions aside, small to medium platforms which fit the above criteria must still be able to demonstrate “best effort” in their attempt to obtain licenses from rights holders and it could be the case that those smaller platforms are strong-armed to have to accept any deal given to them by rights holders so as to not put themselves at risk under article 13.

The current version of the Copyright Directive now goes into the final stages of trilogues — this is a type of three-way dialogue between select members of Parliament, the European Commission, and representatives of the member states. This process happens mostly behind closed doors so there will be very little public oversight of the process.

The overarching principle behind the Directive is sound and I do not believe that anyone in the creative sector would view any attempt at affording their copyright greater protection as a negative, but it would appear there is still a way to go before the Directive can deliver on what is purports to do sufficiently in the eyes of the creative industry.

Paul Motion, Partner: prm@bto.co.uk / 0131 222 2932