EU Parliament passes Directive on Copyright in the Digital Single Market

Enjoy Digital
By Enjoy Digital
5 minutes to read

Following a weekend of protest in Berlin, this week the European Parliament approved the Directive on Copyright in the Digital Single Market.

Google the directive and the word ‘controversial’ is prominent. But what's all the fuss about? What does the directive actually do?

Firstly, what’s a directive?

There are regulations which all EU countries have to abide by, such as safeguards on common goods imported to the EU. Then there are directives which are voted on by the European Parliament but aren’t implemented by the EU. Member states are responsible for interpreting the directive and implementing them how they see fit.

How is European Union law made?

There’s the European Parliament (made up of Members of the European Parliament or MEPS who are elected by the country they represent), the EU Council (consisting of elected member states leaders like - at the time of writing - Theresa May), and the European Commision which is like a civil service and works for the Council and Parliament.

EU law is first received by the EU commission, who work on cases put to it by lobbyists. This is then interpreted by the EU Court of Justice which rules on definitions. After this, it’s passed on to the EU Parliament who hold readings. If any issues are raised during these readings, the law is amended and the process is repeated until Parliament are happy. The law is then transferred to the EU Council who hold a vote. If just one member state vetoes the law, it won’t pass.

So what is this copyright directive?  

According to the EU, the new directive is as follows:

“Creatives and news publishers will be empowered to negotiate with internet giants thanks to new copyright rules which also contain safeguards on freedom of expression.”

This means: 

  • Internet platforms will be accountable for the content that users upload
  • Some uploaded material, such as memes or GIFs, are now specifically excluded from the directive
  • Links to news articles, accompanied by “individual words or very short extracts”, can be shared freely without restriction – this was previously a concern and as such, the wording has changed
  • Journalists will be entitled to a share of copyright-related revenue obtained by their news publisher – journalists and publishers were some of the biggest lobbyists for this directive
  • Technology giants must share revenue with artists and creators too
  • Start-up platforms are not subject to all of the obligations, they are subject to some of them

What else is included in the directive?

  • Many online platforms including online encyclopedias like Wikipedia and GitHub will not be affected
  • The directive gives “stronger negotiating rights for authors and performers” according to the official press release, which explains “Authors and performers will be able to claim additional remuneration from the distributor exploiting their rights when the remuneration originally agreed is disproportionately low when compared to the benefits derived by the distributor.”
  • The directive will also be working to help cutting edge research and preserving heritage
  • This means it should be easier for “copyrighted material to be used freely through text and data mining, thereby removing a significant competitive disadvantage that European researchers currently face.” The directive also states “restrictions will not apply to content used for teaching or illustration.”

What happens next?

According to the EU’s processes: “If the member states accept the text adopted by the European Parliament, it will take effect after publication in the official journal and then member states will have two years to implement it.”

What was so controversial?

The two clauses causing the most controversy are known as Article 11 and Article 13. Note that these have now been changed.

Article 11 stated that search engines and news aggregation platforms will need to pay to use links from news websites. This has been changed so news articles will be able to be shared freely as long as they have only a short extract.

Article 13 held tech companies responsible for copyrighted content posted. Many companies already remove music and videos which are copyrighted, but under the new laws they will be more liable for any copyrighted content. This has also been clarified for the final reading, which was approved.

As with many laws there was powerful support and fierce opposition.

Who supported the directive?

Phil Sherrell, Head of Media, Entertainment and Sports at law firm Bird & Bird commented to BBC News: "Rights holders will be delighted as the directive provides them with additional rights and should strengthen their ability to negotiate royalty payments from online platforms that use their work."

Musicians, performers, script authors and news publishers will be able to negotiate better remuneration deals for internet platforms using their work. European music companies including Universal Music Group and Warner Music Group also lobbied for the directive.

Other supporters include the Society of Authors and the Alliance for Intellectual Property and Proponents which is based in the UK.

As Wired put it: “Proponents of the Directive on Copyright argue that this means that people are listening to, watching and reading copyrighted material without the creators being properly paid for it.”

Who didn’t support the directive?

YouTube doesn't support the directive as there were concerns from game streamers, particularly against Articles 11 and Article 13. Even though WIkipedia are not affected by the directive, they also don’t support it.

However as a result of protest and lobbying, BBC News reported: “The final version of Article 13 says services must make "best efforts" to remove copyright-protected videos in cases where ‘the rights holders have provided... the relevant and necessary information’”.

This is a success for YouTube as they were concerned they’d have to excessively filter every single video uploaded. This meant they would be at risk of losing users as the volume of content uploaded slows because of the legal implications.

Facebook and Google are also not a fan of the directive but should be happier with Article 11 and 13 amendments.

Memes and other parody content are now also excluded from the directive.

While website owners don’t need to install content monitoring software, some feel they will still have to.

Jim Killock of the Open Rights Group said: “It’s very hard to make these tools identifying content, because they can’t identify context, and so they make decisions that are likely to be bad.” So even if the software is in place to handle this job, it may cause perfectly fine content to be removed.

My verdict

The Copyright Directive doesn’t appear to block freedom of expression. Many platforms are purely against regulation of the internet in any way, shape, or form.

The original directive has changed a lot based on the concerns raised particularly around Article 11 and Article 13 so we must acknowledge that concerns have been listened to.

It won't affect the web as much as people think. My most legitimate concern is around interpretation of the law and how member states choose to interpret and implement the directive. We also won't see any effects for around two years.

Surely, it's good for small publishers to have more control of their content and let’s not forget YouTube already have content upload filters. So why are they concerned? That said, some platforms may overreact to the law. In the view of those lobbying for the directive, it’s simply a modernisation of copyright law and making sure creators receive the remuneration they deserve.

Emojis aren’t banned, freedom of speech isn’t restricted.

Let’s just calm down.

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