It’s the internet but not as we know it

New copyright laws bring ‘link tax’ and ‘upload filter’ to the internet

New EU copyright laws from the EU may change the way the internet works. Two of the provisions of this new law are particularly controversial and may lead to a reduction in the number of hypertext links made to news sites, and the onus being placed on online platforms to police the use of copyright protected works without the permission of the copyright holder. Some commentators have warned that this obligation on online platforms to proactively police content may lead to a reduction in the number of memes and GIFs that are published.

On 26 March 2019, the European Parliament voted in favour of the European Union Directive on Copyright in the Digital Single Market (the Directive). The European Parliament’s backing of the Directive, which supports much tougher laws on copyright online, has sparked much outrage, particularly from the internet giants (such as Google, Facebook and YouTube). This is mostly due to the inclusion of Articles 11 and 13 (now known officially as Articles 15 and 17) which were heavily lobbied during the legislative process.

The intention of Articles 15 and 17 (also known as the link tax and upload filter respectively) was to support organisations which create content by compensating copyright holders fairly for their work and making websites responsible for policing copyright. However, critics of the reform say it will in fact inhibit the public’s ability to engage properly with news and content and hinder freedom of expression online, which could, according to Google, “change the web as we know it”.

Article 15 – the link tax

The so-called link tax as set out in Article 15 of the Directive intends to support news publishers and broadcasters by requiring news aggregator sites, such as Google News, to pay a licensing fee to publishers for use of their content online. Although Article 15 was amended to exclude acts of hyperlinking and sharing individual words or “very short extracts” of news publications, the reform remains widely unpopular. Google, in particular, points out that it would still result in a substantial traffic loss to news publishers and, as such, would not lead to the intended benefits for press publishers. This would certainly be the case if Google were to withdraw its Google News service – as it did to avoid similar legislation in Spain in 2014.

In addition, there is a significant amount of uncertainty regarding how individual users will interpret Article 15 as there is an exemption for “private and non-commercial use of press publications”. The intention of this exemption is to ensure that the link tax does not apply to individuals who use press publications as part of their everyday private use of the internet e.g. sharing an article on their personal social media account. However, in an age of social media tycoons with millions of followers who frequently use their social media channels for advertising purposes, it is unclear what counts as a commercial platform and what would be considered private and non-commercial use.

Article 17 – the upload filter

Perceived somewhat to be the most contentious part of the Directive, Article 17 makes online platforms liable for copyright-protected works that have been uploaded by their users without the consent of the copyright holder. Consequently, the onus is on the platforms to identify and remove uploaded content that breaches copyright – an approach that marks a significant departure from current copyright laws, which only requires service providers to take action upon being made aware of unlawful content on their platforms.

The new Directive therefore requires a far more pro-active approach from the platforms themselves by filtering content its users post and checking for copyright infringement. “Rightly so” we hear you say? Maybe. It remains to be seen what lengths platforms will need to go to to avoid or limit their liability and how this will affect the user’s ability to post and share content online. YouTube, which has approximately 300 hours of video content uploaded to it every minute, has said it could be forced to implement draconian measures (such as banning people from uploading their own videos) in order to limit its legal risk. Other platforms have warned that they may stop their services in Europe altogether.

Whilst there is an argument that the Article will not affect memes and GIFs (as they would be exempt on the basis of being parody or pastiche and therefore not copyright infringement), this is not necessarily true across Europe as exceptions to copyright differ from country to country. There is also a practical difficulty. Even if memes and GIFs are legal, content recognition software is arguably yet to reach a level of sophistication that will allow it to distinguish between memes (which are based on copyright works) and other copyright materials. Such filters are prone to error and have been criticised for over-blocking and over-censoring, a process that is difficult to be undone. Therefore, memes and GIFs may well end up being caught anyway.

Conclusion

EU member states have until mid-2021 to implement the Directive into domestic law. Until then, we will not truly know the exact effect the Directive will have. This is, in part, because a Directive can be interpreted by member states when transposing it into their national laws, providing an element of flexibility in how the goals of the Directive are achieved.

As for the UK, the UK’s implementation of the Directive will be dictated by the Brexit process. If the UK does agree a deal with the EU on its exit then it will depend on the terms of that deal. There is however likely to be a transition period and it is likely that the UK would be obliged to implement the Directive. Should the Directive be adopted by the UK, the Government will need to ensure that it is implemented in a way which works for the British economy and which reaches a fair balance of rights between the publishers and the online tech giants of this world – this is a balance that is likely to be hard to strike.

If you wish to discuss this topic further or have any other questions, please contact Nick Phillips, Selina Clifford, or any member of the Edwin Coe Intellectual Property team.

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