EU Parliament Issues Strict Copyright Directive in a Sweeping Reform of Copyright Law
In March 2019, the European Parliament voted to adopt new legislation regarding online content, and, in April, the European Union (the “EU”) member nations approved the Parliament’s directive.
The Directive on Copyright in the Digital Single Market (the “Directive”) is intended to harmonize EU law with international law and to create uniformity in the national copyright laws of EU member states. The Directive has garnered criticism from many, including from groups outside of the EU that may be forced to comply with stricter national copyright laws in offering digital services to the EU. In particular, critics take issue with the Directive’s Articles 15 and 17, and argue that they would inhibit online expression and would have a chilling effect on the open nature of the internet, thereby decreasing the free flow of ideas and innovation.
Article 15 has been branded the “link tax” by critics, and will give publishers and authors the right to demand that aggregators, such as Google, Microsoft, YouTube, and Facebook, obtain a license before showing (or, possibly, linking to) material of the publisher or author. It is unclear the amount or type of material that would trigger this right, but it is possible that, in some cases, any use or linking of protected material may provide the publisher or author with the right to demand a license.
Article 17 governs how user-generated content may be shared on the internet, and creates liability for any digital service provider that shares copyrighted content online without the proper authorization. Practically, this could mean that platforms that permit user-generated content to be uploaded will need to proactively screen all content to ensure that its upload will not infringe the rights of another. If copyrighted content is uploaded to a platform, the operator of that platform may face liability—even if it immediately removes the protected content—if it cannot show that it took proper care to prevent the unauthorized upload of the content to the platform. Several large digital service providers have publicly indicated that, rather than comply with what they perceive to be burdensome legal requirements, they may cease to offer certain services within the EU as a result of the Directive.
There are certain uses of copyrighted material to which the Directive will not apply, including any use for purpose of quotation, criticism, review, or parody. Additionally, certain sites that host user-generated content may be exempt from the requirements of the Directive if they can satisfy certain criteria—such as having fewer than five million unique, monthly visitors. However, even with these exemptions, there are many service providers that will, ostensibly, be subject to the Directive’s requirements.
While the Directive was approved by the European Union, member states have two years to implement enabling legislation. Each member state must modify or enact law that accomplishes the directive, but the precise manner in which each state does so may vary—a possibility that, despite the intent of the Directive, may create a system of inconsistent laws across the continent.