IP & Technology

It was a close call but following huge protests from a surprising mix of consumers, publishers and tech business lobbies (see previous blog here) the EU Parliament voted just yesterday to reject a hugely controversial new copyright Directive proposal.

The proposal was intended to be part of the Digital Single Market initiative but it seemed more likely to create division and even to provoke defiance within the EU and by the affected parties. Indeed Wikipedia in Italy voted with its feet by taking steps to block all user access to its articles in protest against what the radical new proposals from the EU would mean. Perhaps these protests weighed on the minds of the MEPs in deciding yesterday by 318 to 278 to vote down the proposed new law.

Even though the law has been sent back to the drawing board, it is worth recapping on why the proposals were so controversial and provoked such widespread outcry. Particularly as any redraft is likely to strive towards a similar aim. The Directive proposed two key changes which would have radically altered the operation of the internet as we now know it.

Firstly the infamous Article 13 provision would have meant that the bigger platforms for example Google and Microsoft etc. would have required to adopt “effective content recognition technologies” or in other words content filtering systems which would prevent copyright work from being posted on them in the first place. Seem perfectly reasonable? Clearly authors, artists and journalists could have benefitted as they have long suffered from large scale copyright infringement on the internet which they are unable to tackle in any meaningful way, thus arguably losing out on substantial revenue. However just think about it. Whilst the provisions in the Directive were very vague (which was part of the problem) it had been criticised as the thin end of the wedge towards internet censorship, auto surveillance and control of internet users. It will be interesting to see how any redrafted provision attempts to overcome this criticism.

The provision as drafted would have required the platforms to prevent publication if the automated technologies identified any copyright infringing material. However copyright law is complex and there are many possible defences and exceptions which can be applicable. The automated technologies, which are extremely expensive, are not yet sophisticated enough to apply these, which in any event are not based on any scientific logic but rather require application of the weighing of interests and legal tests in each case. Some of these exceptions and defences are for example fair comment, quotation, criticism and parody. It is easy to see why Wikipedia took such radical steps to show its distaste for the proposals as they must frequently rely upon some of these exceptions including fair use.

The other controversial proposal was the so called “link tax” under Article 11. The effect of this would have been to force the same websites and also relevant news aggregators and media monitoring companies to pay licence fees to publishers (some 20 years post publication) for using snippets of text from published articles/news stories. This was criticised as being likely to inhibit or even prevent free linking on the internet. Similar measures have already been tried and have failed in Germany and Spain in their national laws. Indeed the German law is about to be invalidated. Even individuals could potentially not share links without a licence which might even have impeded bloggers!

Also smaller publishers and would be start-ups in the news publication sector often rely heavily on the posting of links to their content as a way to obtain market recognition and draw readers to their sites. These measures may have affected them detrimentally and removed what was a level playing field.

Another possible dangerous side effect was that this measure could result in disproportionately more fake news and propaganda appearing on the web. Such publishers of this type of content are unlikely to want to charge licence fees for linking to their content as their only interest is likely to be getting their ‘misinformation’ out there. There may well end up being no disincentive or ban on free publication links to this material and so the amount of this type of content is likely to rise and have more visibility as a result.

We will now require to wait and see whether the draftsmen can craft something that will satisfy the politicians and the wider industry. However, it will clearly be a significant challenge to find the right balance between protecting the interests of the rights holders whilst avoiding any erosion of freedom of speech and allowing access in line with fair use requirements and the like.
In addition given that the Directive is back to the drawing board the delay in any implementation may mean that Brexit will intervene and the UK will not be compelled to introduce this controversial new law at all.

However, even if Brexit means that the UK does not have to actually implement the redrafted Directive, the global reach of the internet means that any redrafted version will almost certainly have an indirect impact on UK publishers and rights holders.

Gill Grassie

Gill Grassie

Partner at Brodies LLP
Gill is a Partner in Brodies IP and IT dispute resolution team. Her work covers the whole gamut of contentious IP, IT and technology and a wide variety of sectors as disparate as luxury brands, oil & gas and renewables, pharmaceuticals and financial services.
Gill Grassie