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New EU Copyright Directive Adopted

On 15 April 2019, the European Council voted in favour of the new and controversial Copyright Directive, an instrument of legislation intended to update online copyright laws for the digital age. The Copyright Directive deals with topical issues such as text- and data-mining. It targets major content-sharing platforms which distribute content often without the consent of right holders.

On 15 April 2019, the Council adopted the Directive of the European Parliament and of the Council on Copyright and Related Rights in the Digital Single Market (the Copyright Directive) by a qualified majority of 71.26%, narrowly above the required 65% threshold. The new Copyright Directive is designed to modernise existing copyright laws for the digital age. Among other matters, it obliges tech companies to share more revenue with producers of the creative works that they publish, and could change the way they monitor copyright infringements.

Through all stages of the legislative procedure, the Directive sparked a fierce debate among lawmakers, tech and media industries, and advocates of the free internet. Most controversies surround Articles 15 (former Article 11 of the proposal) and 17 (former Article 13 of the proposal) of the Copyright Directive.

  • Article 15

The Copyright Directive recognises that publishers of press publications are facing problems in licensing the online use of their publications to information society service providers, making it more difficult to recoup their investments. Article 15 is intended to give press publishers a means to request a fair remuneration when news aggregators such as Google News, or digital giants such as Facebook or Twitter, share publishers’ content online. Also dubbed the “link tax”, the Article allows press publishers and journalists to demand licence-fee payments for copyright-protected material that is made available.

The scope of the Copyright Directive includes, e.g., daily newspapers, weekly or monthly magazines of general or special interest, and news websites. Scientific journals or publications for academic purposes are not covered. Websites, in particular blogs, which provide information independently from the initiative, editorial responsibility and control of a service provider such as a news publisher, are excluded from the scope of the Copyright Directive as well.

It will be up to the Member States to lay down the conditions for the sharing of such compensation or remuneration between authors and publishers in accordance with their respective national legal systems. It is feared that due to this provision a lot of content might simply disappear from the internet out of an unwillingness to pay. Whether these fears are justified and whether the provision proves harmful to the circulation of information remains to be seen.

  • Article 17

The new Copyright Directive states that online services are a means of providing wider access to cultural and creative works and offering great opportunities for cultural and creative industries to develop new business models. However, although online services enable diversity and ease of access to content, they also generate challenges when copyright-protected content is uploaded without prior authorisation from right holders.

To address this legal uncertainty, the Copyright Directive introduces liability to which online content-sharing service providers would be subject, for making available copyright-protected works without authorisation. The provision has drawn substantial criticism over fears of censorship, and concerns that tech giants such as YouTube and Facebook might use content-filtering technologies in order to prevent the uploading of potentially copyright-protected content. Such automatic content-filtering technologies might not be able to distinguish between infringements of copyright and legitimate use through, e.g., comment or parody.

Trying to address such concerns, the provision now states that its application shall not lead to any general monitoring obligation.

Furthermore, certain safeguards have been introduced with a view to protecting small firms and the freedom of expression. In particular, exceptions apply to the uploading and making available of content generated by users on online content-sharing services in the case of quotation, criticism, review or use for the purpose of caricature, parody or pastiche. This also includes the use of memes.

Certain critics still argue that the Copyright Directive will mean the end of the Internet as we know it. It is feared that the provision might pave the way towards a future introduction of censorship. Finland, Italy, Luxembourg, Poland, the Netherlands and Sweden all opposed the Copyright Directive, but were outvoted.

The Copyright Directive also deals with the issue of text- and data-mining (TDM), also referred to as text and data analysis. TDM is a technique which is not aimed at reproducing a copyright-protected work, but at extracting the information contained in it. Copying content is, depending on the method used, only necessary as an intermediate and incidental step in the process. Nevertheless TDM is surrounded by legal uncertainty and can be seen as a copyright infringement under current EU legislation unless covered by licence agreements.

TDM allows for processing, recombining, and extraction of further knowledge from large amounts of data and text. It can identify patterns and establish associations between seemingly unrelated pieces of information. As a tool, TDM, often used in conjunction with self-learning algorithms, can benefit society in fields such as traffic prediction, natural language processing or the identification of potential cures for diseases.

In order to catch up with more developed jurisdictions where the use of TDM is more common, the Directive contains an exemption in Article 3 for the purposes of scientific research. While the author of a database has the exclusive right to carry out or to authorise reproduction of a database, Article 3 of the Copyright Directive contains an exception for reproductions and extractions made by research organisations and cultural heritage institutions in order to carry out, for the purposes of scientific research, text- and data-mining of works or other subject matter to which they have lawful access.

After being published in the EU’s Official Journal, Member States will have two years to transpose the provisions of the Copyright Directive into national law. Critics fear that the new law’s implementation might vary significantly, depending on how national governments choose to interpret the Directive’s provisions.

Content provided by Picture: HKTDC Research
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