The EU Parliament has voted to adopt its position on controversial changes to EU copyright rules.  This involves changes to proposals to introduce a new right for news publishers and require online providers hosting user-generated content to address copyright infringement.

Why the controversy?  

The EU Commission published a proposal for a directive on copyright in the Digital Single Market (DSM Directive) back in 2016, as part of the EU’s package of Digital Single Market initiatives.  Two provisions in particular have been the focus of much commentary and intensive lobbying since then: 

  • Article 11 on ‘protection of press publications concerning digital uses’ would allow publishers of press publications to control the reproduction and making available of their publications online.  These are so-called ‘neighbouring’ rights because they would extend the rights that copyright owners already have under the EU’s Infosoc Directive to publishers (although this may well be the same person for lots of online news content).  The aim is to allow publishers to monetise use of their content by online platforms, including news aggregators that link to or display snippets from their content; and
  • Article 13, pithily titled ‘use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users’. This would require operators of platforms hosting large amount of user‑generated content to work proactively with copyright owners to reach licence agreements and block infringing content, including by using content-filtering technology.

There are strong views on both sides of what has become a fierce debate. Some see the proposals as a victory for rights-holders and a welcome effort to close the so-called ‘value gap’ between the revenues generated by large content platforms and the royalties they pay to rights-holders struggling to monetise their content online. Others see this as a severe blow to platforms like YouTube, marking the beginning of the end of the internet as an open platform and a further eroding the liability safe harbours for platform-operators in the EU. 

So what’s changed after this vote?

The Parliament voted to support both proposals in substance with a few key amendments, some of which had already been discussed at the committee stage.

Proposed changes include:

  • Introducing an ‘online content sharing service provider’ definition, clarifying the operators that will be in-scope. Specifically, this definition includes ‘information society service providers one of the main purposes of which is to store and give access to the public or to stream significant amounts of copyright protected content uploaded / made available by its users and that optimise content and promote for profit making purposes…’.  It’s not clear how the ‘main purpose’ or ‘significant amounts’ tests should be applied by Member States.
  • Exemptions for certain cloud, non-commercial and small platforms - non-commercial service providers (eg Wikipedia), providers of cloud services for individual use, micro and small enterprises, online market places mainly for physical goods and open source software development platforms (eg GitHub) wouldn’t be considered online content-sharing service providers.
  • Online content-sharing service providers should implement content filters where they don’t want to reach licensing agreements with rights-holders.  Filters should be designed to avoid blocking non-infringing works and to establish complaints redress mechanisms for rights-holders, which involve human review.
  •  A shorter 5-year term  for the neighbouring rights (vs 20 years in the EU Commission’s proposal), fair and proportionate remuneration for rights-holders and revenue sharing with authors. The amendments clarify that the new rights aim to let publishers obtain ‘fair and proportionate remuneration’, and authors whose work is incorporated in a press publication are entitled to an ‘appropriate share’ of extra revenue that publishers receive.
  • No restrictions on sharing mere hyperlinks accompanied by ‘individual words’ to describe them, an apparent attempt to protect freedom of expression.

What happens next?  

The copyright reform debate isn’t over yet. The Parliament now needs to start trilogue negotiations with the EU Council to reach a compromise between the institutions’ DSM Directive texts.  The compromise text will be back in front of the Parliament for a final vote in 2019, before the European elections.

Here’s the Parliament’s press release, following its vote on 12 September 2018.

The Parliament’s adopted text is here.