On 2 April, after many years of debate and negotiations the European Parliament and the Council adopted a new Directive on copyright and related rights in the Digital Single Market (Directive 2019/790). Essential parts of the previous framework on copyright in the European Union date back to 2001 which meant that there was a need to update the framework to better apply to the digital environment of today (see the second question in the FAQ on Copyright Reform published by the Commission). The purpose of the Directive is to provide a comprehensive framework benefiting a wide range of actors in the digital environment. The aims are, according to the Commission, (i) to provide fairer rules for a better-functioning copyright marketplace by establishing new rights to remuneration for various actors (such as writers, journalists and musicians); (ii) to ensure more cross-border and online access to copyright-protected content for citizens; (iii) to offer wider opportunities to use copyright-protected material for education, research and preservation of cultural heritage; (iv) to enhance the data economy (see the first question in the FAQ on Copyright Reform published by the Commission).
There has been a lot of debate regarding this directive, mainly related to two provisions within it, namely Art. 11 and Art. 13. Article 11 has been renumbered to Art. 15 and Art. 13 has been renumbered to Art. 17 in the adopted version of the Directive. We will throughout this post use the old numbering, art. 11 and 13, as the debate mainly took part before the renumbering, and it still seems to be the commonly used numbering. When referring to specifically to Art. 17 of the adopted Directive we will, however, use the adopted numbering. The focus of this blog post will be Art. 13 and the debate relating to this provision and the effects of it.
Art. 13, which as mentioned above was renumbered to Art. 17, contains 10 paragraphs and several sub-paragraphs. The point of the provision is the ‘use of protected content by online content-sharing service providers’ and our focus will be on the application of the Article. The effect of Art. 13 will make the platforms legally responsible for any copyrighted content uploaded on their platform. The platforms will need licenses for the copyrighted material and will therefore have to negotiate licences with the parties holding the copyright, e.g. record labels. If they cannot get a license they must do everything they can to stop the content from being uploaded to the platform. If the platforms do not satisfy the obligations imposed upon them by Art. 13, the Commission shall take action in accordance with its assessment.
Human rights criticism and the debate regarding art. 13
The copyright directive raised a controversy regarding the respect for the international standards of freedom of expression, granted, for example, by the International Covenant on Civil and Political Rights. Some experts urged the European Union to bring the directive in line with these standards. Notably, in June 2018, the United Nations Office of the High Commissioner for Human Rights (OHCHR) Special Rapporteur on the promotion and protection of freedom of expression, David Kaye, raised concerns regarding the potential implications for the freedom of expression. He published a letter, addressed to the Commission, on the potential dangers of the proposed directive, specifically Art. 13.
According to the Special Rapporteur, ‘there should be as little restriction as possible to the flow of information on the Internet’ (‘Letter’, p. 5). Indeed, he considers that driving internet platforms toward restriction of user-generated content, even at the point of upload, ‘is neither a necessary nor proportionate response to copyright infringement online’. The criticism formulated by the Special Rapporteur is mainly based on the ICCPR, which establishes the States’ obligation to respect and ensure the right ‘to seek, receive and impart information and ideas of all kinds’ (Art. 19(2) ICCPR). It also states that restrictions on the right to freedom of expression must be ‘provided by law’ and necessary ‘for respect of the rights or reputations of others’ or ‘for the protection of national security or of public order, public health and morals’.
The main risk highlighted by this opinion is what the OHCHR Special Rapporteur calls the ‘privatisation of knowledge’ (‘Letter’, p. 5). Moreover, he considers that Art. 13 provides the obligation to prevent the availability of copyright protected works in ‘vague terms’, such as demonstrating ‘best efforts’ and taking ‘effective and proportionate measures’, leading to a ‘considerable leeway for interpretation’ and legal uncertainty (‘Letter’, p. 7).
Extended liability for intermediaries
Art. 13 has been criticized as going against existing EU law. Within the E-Commerce Directive there is a limited liability regime for information society service providers that also act as intermediaries. According to the criticism from inter alia iLINC, the new copyright directive would not comply with this limited liability regime, since it extends the liability of intermediaries such as YouTube. This new provision and the effects of it is justified on the basis that the platforms covered by the Directive should not be seen as merely technical intermediaries (iLINC, The Limited Liability of Internet Intermediaries in the EU and STIM, Allt du behöver veta om copyright).
Memes and GIFs
In everyday speech the Directive has been referred to as the “Meme Ban”. Although, the memes are not necessarily endangered. Uploaded content with the purpose of quotation, criticism, review, caricature, parody and pastiche are specifically allowed by Art. 17(7a-b) in the adopted version. This is important in order to strike a balance between fundamental rights protected by the Charter of Fundamental Rights of the European Union: on one hand the freedom of expression (Art. 11) and the freedom of arts (Art. 13) and on the other hand the right of property, in this case intellectual property (the Directive, para 70 of the preamble).
One difficulty is that the Directive does not specify how to fulfill the duties arising from the provision, but the easiest way ought to be to impose upload filters. The directive states that the application of Art. 13 should not lead to any general monitoring obligation (Art. 17(8) in the adopted version), but that might still turn out to be the cheapest way to avoid any liability or an extreme workload for the platforms. The Directive does not take into consideration the technological difficulties regarding the development of upload filters. The concern regarding the use of content and upload filters is that these filters are not sophisticated enough to distinguish perfectly between allowed content and copyright infringing content (The Telegraph, Article 11 and Article 13: What you need to know about the new copyright directive, 1 April 2019). Material protected by copyright comes in different forms (videos, memes, audio files, pictures, etc.), and the upload filters risk to block content that should be allowed online. For example, the upload filters cannot separate allowed material that is being used for educational purposes or allowed parodies of copyrighted materials versus the unlawful usage of copyrighted materials. This contradicts the objectives of the Directive, since it will have a harmful impact on online creators. Another aspect of the Directive is the workload that will emerge for the platform companies. By balancing the possible workload without any upload filters versus the occasional wrongful filtering of allowed data, to sort out the wrongful filtering would take far less effort for the platforms. In order to avoid having penalties imposed for lack of authorization, upload filters will become inevitable for service providers.
Art. 13 of the Directive only imposes the obligation on the service provider to obtain authorisation for the data, for instance by concluding a licensing agreement. If authorisation of the data has not been granted, the service provider is obliged to remove the copyright protected materials from its servers. In the adopted version of the Directive, Art. 13 was renamed Art. 17. In Art. 17(4) the service provider shall also be deemed liable for ‘unauthorised acts of communication to the public […] of copyrighted-protected works and other subject matters’. In order to avoid liability for the platform that the copyrighted work has been uploaded to without authorization from the rights-holder, the platform has to show that it has undertaken the required steps stated in Art. 17(4) in the adopted version. The required steps are that the platform has made best efforts (1) to obtain authorisation, (2) to ensure unavailability of specific works for which the rights-holder have provided relevant and necessary information, (3) the platform has to have acted expeditiously to disable access to or remove the work and (4) made best efforts to prevent future uploads. A problem with the conditions stated is the interpretation of best effort as well as expeditiously, it is not possible to predict the correct interpretation which will have to be established by the ECJ when a case related to it arises.
License requirement and effects on smaller companies
Small sites may lack the power to negotiate fair licensing deals and upload filters could be too costly. Activists and members of the European Parliament that are against the Directive have argued that both Articles 11 and 13 could be a business opportunity for the likes of Google, as the smaller businesses would be forced to hire their technology to filter the content uploaded. Google has already spent $100M on contentID which is the most famous content filter (see Cory Doctorow’s post published on 19 March 2019).
The Directive shall for example provide fairer rules regarding the copyright marketplace by establishing new rights for journalists and writers, which is praiseworthy. However, if the Directive poses heavy burden on small businesses but not on the big businesses, it could be criticized for infringing on the competition balance of the internal market by only benefiting the bigger companies. This shift of balance might be a basis for seeking an annulment action against the act, since it might be in breach of general principles of EU law such as the principle of proportionality as well as Art. 114 TFEU which regulates the functioning of the internal market. The aims of the Directive are understandable, but the effects of the measures may not be suitable and proportionate. However, this might not be a successful action or even plausible, taking into consideration the difficulty of proving individual concern and the fact that both the EP and the Council adopted the legislation proposed by the Commission.
Josefin Nilsson, Alva Eriksson, Hanna Wiklundh, Eric Jämtheden, Jeanne Pouzet and Karin Dahlberg