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Crystal clear: copyright reform in the EU

29 March 2019

The European Union seeks copyright reform to meet the new reality of the internet which is all about sharing information now. However, Art. 15 and 17 of the 'Copyright in the Digital Single Market' directive are causing considerable controversy. What do these texts imply, and why are they provoking such strong reactions?

History

The aim of the copyright reform the EU wants to implement is to find a compromise between the protection of copyright on the one hand and the sharing of information over the internet on the other.  The current legislation on copyright dates from 2001, long before Facebook, Twitter, memes, etc.

The arrival of social networks has resulted in everyone sharing content en masse. Someone picks a quote, adds an image and before you know it, it's on Facebook, Twitter, Instagram. Or they turn a clip of a movie into a GIF which is used to support a feeling - rolling eyes, surprise, fist bump, etc. Not to mention the content we upload to YouTube or other video networks.

It’s is not only about the fact that internet users, unintentionally or intentionally, infringe copyrights by doing so. More importantly, internet giants such as Facebook and Google not only tolerate this, but also benefit from it. Because without this 'user generated content' their network would be boring. You could even say: internet giants are earning advertising income on the back of the makers of content. 

 Copyright icon on screen.

And then there's the 'scrapers', which automatically extract content from other websites via bots and offer it as content packaged in their own form. Some news sites are guilty of this, the so-called 'aggregators', but Google is also under fire for such practices with its Google News.

Copyright reform was needed to protect the cultural heritage of the Member States and to ensure that publishers, broadcasters and artists receive a fair compensation. Negotiations were started and a first version of the new directive was issued. This met with serious opposition and was voted down in the summer last year.

In February this year, the negotiators of the Member States, the European Commission and the European Parliament reached a compromise. In the new directive (here is the full text) it are chiefly art. 15  (formerly art. 11) and art. 17  (formerly art. 13) that cause controversy.

Judge's hammer with a laptop in the background

Article 15: 'Link tax'

In short: Article 15 stipulates that a publisher of a press publication is entitled to compensation if a link is made from an online platform to his article. This provision was therefore soon given the name 'link tax': the protest was that if you didn't pay, you would not be allowed to make a link to an article.

This fear is unfounded. You can still freely link to an article, and expand the link with a few words of that text. The exceptions to the copyrights that existed until now, such as permission to quote from a press publication, are still valid. 

Chiefly information platforms such as Google News or the 'scrapers' that repackage content from news sites have to change their working methods.

(The details of article 15 are available here)

Specifically: what does this mean for you?

If you're a private person nothing changes: copying entire articles or long pieces of articles was already a copyright violation, and it still is. You can still link to articles. 

If you have a website with texts in which you refer to press publications, you may use short pieces of text for the link, such as snippets, from now on. However, news aggregators such as Google News, or search engines such as Google, Bing, etc. will have to change their working methods or buy licences from the news publishers.

For the other internet players ( registrars , registries, the hosting industry) nothing changes either in principle. As before, linking remains the individual website owner's responsibility.  

Article 17 (formerly art. 13): upload filters

This article applies to online platforms the main objective of which is to enable users to share content. The platforms are obliged to make every effort to prevent the uploading of copyright protected content (music, video, etc.) without the copyright holder's consent (videomaker, musician, copyright companies such as SABAM, record labels, etc.).

If content is posted online without the copyright owner's consent, the platform must still try to compensate the copyright owner. If this is not possible, the content must be removed.

Although online platforms are free in their choice how they monitor the uploading of content, it is feared they will choose upload filters. However, they are not infallible, and could be too indiscriminate: legitimate content such as parodies or satire could be blocked by the filters. Various measures have been built into art. 17 to prevent this.

The details of article 17 are available here

Specifically: what does this mean for you?

If you're a normal user nothing changes. As in the past, you mustn't upload copyright protected works - but you never did, did you? If you do, the website where you upload the content may hold you responsible for the damage they suffered because you uploaded content for which you did not have the copyright owner's permission. For parodies, satire nothing changes. And for memes and GIFs an explicit exception is made.

As website owner: as long as uploading and offering (copyright protected) content is not the explicit purpose of your website to make a profit (for instance advertising income), nothing changes for you. 

If this is the case, you need to follow the rules as explained above: for copyright protected content you need to request the licence holder's consent. If you don't get it, you need to make the content unavailable. How you filter this content is your business, but the EU is against a comprehensive content upload filter. 

There is an exception for starting websites and small players.

For the other internet players nothing changes. Internet service providers such as Telenet or Proximus, the registrar who registers domains, the registry which manages a Top Level Domain, or the hosting companies now know where they stand. The responsibility lies with the operator of the website (the information society service provider or the content sharing service provider ). For example, a hosting company cannot be obliged to install additional filters.  

Copyright in the Digital Single Market concept on European Union flag

What now?

There was considerable protest against this reform, among others from Bits of Freedom (NL). They fear that in the future there will not only be copyright filters, but also filters for terrorist content, for sexually explicit content, for fake news, for hate speech. And that would result in the monitoring of everything you say or show online.

Various amendments were therefore tabled at the beginning of 2019, among others to remove Art. 15 and Art. 17 from the legislation. These amendments were rejected on 26 March 2019. The EU Member States now still have to approve the texts of the European Parliament. They then have two years to vote their own laws which apply the European directive.

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