[The content of this article is now out of date; you can see our latest posts on how the Copyright Directive has affected our Intellectual Property Law at this post (first part) and in this post (second part)].
On July 5, the European Parliament surprised everyone by voting against the so-called Copyright Directive, thereby blocking the progress of the legal text and opening a period of parliamentary reflection until September. In order to reach a better consensus on an issue that was so sensitive for the entire Internet community, the European Parliament decided to return the matter for amendment. Two months and two hundred amendments later, the European Parliament's Legal Affairs Committee yesterday put the text to a new vote, with a result this time in a favorable sense.
The talks came to a standstill due to the barrage of criticism that the proposal received (and continues to receive), mainly due to the content of Articles 11 and 13, which, as we already mentioned in this post, meant the recognition of the newspaper publishers as holders of a related right over their publications, and the obligation for Internet platforms to have technologies capable of detecting content that infringes intellectual property rights. Both articles, although they were the subject of most of the amendments introduced, were finally approved by a narrow margin: Article 11, with 393 votes in favor and 279 against, and Article 13, with 366 votes in favor and 297 against.
Echoing the main criticisms, but without abandoning the objective of ensuring that authors, artists, publishers, and journalists receive appropriate remuneration for the online exploitation of their works, the amendments approved yesterday by the European Parliament to the Commission's text provide a new approach to this controversial proposal for a directive.
With the new wording of Article 13, the most controversial, it is proposed that eliminate the obligation to implement threatening pre-filtering systems (accused of violating the right to freedom of expression), giving freedom to the platforms to adopt the measures they deem appropriate to prevent the dissemination of content that infringes intellectual property rights. These measures, however, must be effective and capable of detecting and separating infringing content from non-infringing content, in order to avoid the paralysis of works that are protected by certain limitations, such as quotation or parody. In this way, the platforms they cease to be mere “containers” of content, if you'll pardon the redundancy, and now assume responsibility for ensuring that all content uploaded to them respects the intellectual property rights of its creators..
This also strengthens the negotiating position of authors, artists, and other intellectual property rights holders, who must necessarily grant licenses to internet service providers so that they can distribute their works, placing them in a favorable position to agree on higher remuneration.
Furthermore, the new text exempts from complying with this obligation both small platforms and those that operate on a non-profit basis, as a measure to encourage (or at least not discourage) the creation of new companies. Therefore, only tech giants such as Google, YouTube, and Facebook will have to take on this new responsibility, leaving out, for example, Wikipedia (which shut down for a day in protest during the first round of deliberations).
With regard to Article 11, the new responsibility assumed by platforms online and content aggregators, together the recognition of a related right for newspaper publishers means, strictly speaking, that these Internet providers will also be forced to pay publishers, as new rights holders, for the material they distribute. In other words, in order for Facebook users, for example, to continue sharing news from digital newspapers on their walls, Facebook must first obtain a license from that particular newspaper to be able to disseminate its articles and other content. Furthermore, Parliament has specifically indicated that not only publishers will benefit from this new remuneration, but also journalists themselves. This new right cannot, however, continue to be called a “link tax” because, as established in the new wording of the article, sharing simple hyperlinks accompanied by single words will be permitted without restrictions.
As can be seen, despite the reforms included, in practice the consequences are practically identical, and the response from the parties involved has been identical: information society service providers and Internet users continue to protest, while authors, artists, and particularly publishers welcome the strengthening of their rights.
The Parliament's favorable vote does not mean that this “European-style AEDE levy” will now come into force, nor does it mean that Internet platforms will now be liable. The text continues to be a proposal., which will therefore have to be put to further votes until it is finally approved, if applicable. In the coming months, the European Parliament, Commission, and Council will have to debate the proposal in parliamentary committee until an agreement is reached, which will then be put to a third and final vote. It is estimated that, if the negotiations are successful, the proposal will finally become a directive in May 2019. In addition, the directive will then have to be transposed into the national law of each country, which guarantees us long periods of controversy, pressure, and deliberation.
[Article written by Patricia Fernández Céspedes]
