Should digital platforms be treated as publishers? Key elements of Digital Copyright Directive

The Digital Copyright Directive was published in the Official Journal of the EU on Friday 17 May 2019, having been approved by the European Parliament and the Council of the EU on 26 March 2019.

The Directive will come into force 20 days from publication, so on 6 June 2019.

The Directive has polarised opinion and been the subject of much debate, with Articles 15 and 17 proving most controversial (Articles 11 and 13 respectively in previous drafts).

Daniel Lloyd, Nick Fenner and Lisa Urwin of TLT's Technology and IP team were recently joined by key practitioners within the technology sector to discuss these Articles and the legal debate surrounding them. We outline some of the key issues addressed during this session below.

Article 15 (formerly Article 11): online use of press publications

Article overview

This Article requires "information society service providers" (in effect, any commercial website) to pay publishers of press publications for the digital use of their content. The introduction of this Article is intended to allow some of the revenue generated by platforms sharing content to be recouped by the original publisher of the content.

Press publications include daily newspapers, weekly or monthly magazines of general or special interest and news websites. The publishers' rights enshrined in Article 15 apply for two years after the press publication is published (calculated from 1 January of the year following the date of publication).

Exceptions to Article 15 include the following:

• Article 15 does not apply to private or non-commercial uses of press publications by individual users.
• Uses of "individual words or very short extracts" of a press publication are excluded from the scope of Article 15 (known as the "snippet" exception).
• Article 15 does not apply to the sharing of hyperlinks. Information society service providers will therefore still be able to share hyperlinks to news articles.
• Periodicals published for scientific or academic purposes (such as scientific journals) are not considered to be press publications and are therefore excluded from scope.
• Article 15 cannot be invoked to prohibit the use of works for which copyright protection has expired.

Article 15: why the controversy?

Campaigners against the introduction of Article 15 have argued that it will limit freedom of expression and sharing of information on line and that it may result in an increase in the prevalence of fake news. In addition, whilst Article 15 allows the sharing of hyperlinks and the use of "individual words or very short extracts", some consider that it may pose a limit on linking (due to the uncertainty around how snippets and extracts should be used). A further difficulty is that the Directive does not define a snippet so there is a danger that Member States may adopt different approaches in the course of transposing the Directive into domestic legislation (which may result in variation across the EU).

Others fear that it may not achieve its anticipated effect of ensuring a fair share of the profits generated; similar laws already implemented in Germany and Spain have failed to achieve this. There are also concerns that Article 15 may favour large publishers who can strike advantageous licensing deals with information society service providers (to the detriment of smaller publishers). The new rules may also create higher barriers for start-up businesses that would not be able to rely on shared content to drive traffic. 

Article 17 (formerly Article 13): use of protected content by online content sharing service providers

Article overview

This Article aims to give content creators greater rights when their work is used and distributed online. Under this Article, online content sharing service providers (such as Facebook and YouTube) are required to obtain the authorisation of the copyright holders for the content they are hosting. If they are unable to obtain the copyright holders' authorisation and copyright protected material is uploaded to their platforms then platforms will be held liable unless they can demonstrate that they have made:

• Best efforts to obtain authorisation to use the protected content;
• Best efforts to ensure that unauthorised content is not available on their platforms; and
• Best efforts to remove or disable access to content from their platforms when asked to do so by the copyright holders and to prevent future uploads of the notified content.

The obligations prescribed by Article 17 are less onerous for start-up platforms (i.e. those less than 3 years old with an annual turnover below EUR 10 million), only requiring them to make best efforts to obtain an authorisation for the content they are hosting and to remove or disable access to infringing material upon notification by the copyright holders.

If, however, the average number of monthly unique visitors to a start-up platform exceeds 5 million in the last calendar year it will also be required to make best efforts to prevent future uploads of the notified material, as long as relevant and necessary information has been provided by the copyright holders.

Are there any limitations/exceptions?

Article 17 does not include a general obligation for online content sharing service providers to monitor their platforms or prescribe any specific means to recognise infringing content.  However, it is unclear how online content sharing service providers could deal with unauthorised content without adopting filtering technology.

There are certain service providers who are excluded from the scope of Article 17. These include not-for-profit online encyclopaedias (such as Wikipedia), online marketplaces and open source platforms (such as GitHub).

Article 17 also makes it clear that content generated by users for the purpose of quotation, criticism, review, caricature, parody and pastiche is allowed without the need for online content sharing service providers to obtain the authorisation of the copyright holders. This means that, despite concerns previously raised about Article 17 having an adverse effect on the ability to use satirical content (such as memes or gifs), such content can still be used; as Axel Voss clarified: "The 'meme', the 'gif', the 'snippet' are now more protected than ever before."

Article 17 debate

Supporters of Article 17 have argued that it aims to address the so-called '"value gap" by enabling copyright holders to receive an appropriate reward for the use of their works and that the strengthening of the licencing market will foster transparency between copyright holders and online content sharing service providers. In a press statement, the European Parliament stated that: "currently internet companies have little incentive to sign fair licencing agreements with rights holders, because they are not considered liable for the content that their users upload".

Others consider that, due to the lighter obligations applying to younger/smaller platforms, Article 17 will act to level the playing field for those platforms, which may have fewer resources than their larger market competitors.

Campaigners against the introduction of Article 17 have argued that it may result in online content sharing service providers adopting a cautious/restrictive approach in order to show that they comply with its requirements by, for example, wrongly excluding content to which the copyright holder does not object.

Others fear that, due to the uncertainty around the measures to be taken for infringing material to be identified, online content sharing service providers may need to put in place filtering technology, which may result in over-blocking content. You Tube, for example, has stated that: "The directive fails to clearly outline requirements for how rights holders should cooperate to identify their content. Instead, it introduces vague, untested requirements that could be imposed on well-meaning platforms, content creators and rights holders. This will likely result in online services over-blocking content to limit legal risk".

What about Brexit?

Given the UK's impending departure from the EU, it is not yet clear whether the UK will implement the Copyright Directive. As it currently stands, before Brexit, the UK is obliged to transpose the Directive into national law. Assuming Brexit will happen sooner than the 24 month deadline, it remains to be seen whether or not after Brexit the UK will chose to ignore the provisions of the Directive or to implement a similar piece of legislation to ensure harmony with EU law in this area.

Conclusions

Articles 15 and 17 represent a considerable reworking of copyright law online, shifting liability for copyright infringement to digital platforms and attributing more responsibilities to them.

In view of the diverging opinions on the Directive, it will be interesting to see how it will be implemented across the various Member States of the EU. TLT will continue to monitor relevant developments and provide further comment on and analysis of the likely impact of the Directive on the current media landscape.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2019. Specific advice should be sought for specific cases. For more information see our terms & conditions