The European Parliament has adopted its position on the controversial proposed Copyright Directive, which includes a proposal for online content sharing service providers to remunerate artists (notably news publishers, journalists, musicians, performers and script authors) for their work when it is used by sharing platforms such as YouTube, Facebook or Twitter. The reform of EU copyright rules is part of the European Commission’s Digital Single Market Strategy. The Commission recognises that whilst online services provide ease of access to creative works and offer opportunities for creative industries to develop, it also generates challenges when copyright protected works are uploaded without prior authorisation from copyright holders.

Highlights of the proposed Directive

  • Service providers to provide “fair and proportionate” remuneration to publishers of press publications, authors, musicians and performers for use of their work;
  • Journalists to be given an appropriate share of any copyright-related remuneration obtained by their publishing house;
  • Service providers hosting large amounts of copyright works uploaded by their users must conclude licensing agreements with copyright holders or use content filtering technology to ensure that unauthorised protected works are not available on their platforms;
  • Sharing hyperlinks, which are accompanied by individual words to describe them, will be free of copyright constraints;
  • To encourage start-ups and innovation, small and micro platforms will be exempt from the scope of the Directive;
  • Platforms must establish expeditious complaints and redress systems (operated by the platform’s staff, not algorithms) that are available to users when content is wrongly taken down;
  • Uploading to Wikipedia, or other online encyclopaedias, in a non-commercial way, will be exempt from the scope of the Directive, and
  • Empowering authors and performers to claim additional remuneration from a party exploiting their rights where the remuneration originally agreed is disproportionately low compared to the benefits derived.

What’s controversial?

The proposed requirement for service providers to reach licence agreements with copyright holders, and monitor and block infringing copyright content using filtering technology has proved to be highly controversial.  The proposal runs counter to the E-Commerce Directive 2000/31/EC, under which there is no general obligation on service providers to proactively monitor their platforms to ensure no infringing content is being shared, nor are they liable for infringing content which has been uploaded without their knowledge. They are merely required, upon obtaining such knowledge or awareness, to act expeditiously to remove or disable access to the infringing content. It has been argued that this proposal places an onerous and costly obligation on service providers to police their platforms, and reduces freedom of expression. It has also been contended that the proposed requirement to remunerate publishers of press publications for the digital use of their press publications may have a detrimental effect on news circulation.

Next steps

Further changes to the text of the Directive is likely as it has yet to be negotiated by the European Parliament, Council and Commission. Lobbying will also inevitably continue over the coming months.  The Directive will be subject to a final vote in 2019.