[The content of this article is now out of date; you can see our latest posts on how the Copyright Directive has affected our Intellectual Property Law at this post (first part) and in this post (second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)].
There was a surprise in the European Parliament plenary session, which voted today on the Proposal for a directive on copyright in the digital single market for negotiation with the Council. The vote was unfavorable, with 318 votes against and 278 in favor. (you can see the official press release from Parliament at this link). This proposed directive included the controversial Articles 11 and 13, accused, especially on social media, of being responsible for the end of the internet as we know it today. The first granted publishers a new right over the digital use of their press publications, and the second established the obligation for platforms to monitor compliance with copyright laws for content uploaded by users.
It is expected that we will have to wait until September of this year for a probable second vote to take place, following debates, deliberations, and likely modifications to the text of the first proposal.
In this post, we will address some of the thorniest issues that have arisen since 2016, when the proposal was formalized, until now.
The Article 11, called link tax o link tax, acknowledged a new category of subjects as holders of property rights, the notable absentees from Directive 2001/29/EC: newspaper editors. These professionals were granted the related right to authorize or prohibit the reproduction and public communication of their publications (without prejudice to the rights of the authors) on the Internet for twenty years. In other words, in order to be able to digitally add and index press articles or, in other words, sharing links that take us directly to them, the publisher's authorization should be obtained, which would normally be subject to payment.
The aim was simply to throw a lifeline to media outlets that have been financially damaged by the digital revolution and the gradual disappearance of print media, while at the same time having to endure for years other platforms basing their business model essentially on exploiting their articles on the internet, thereby competing directly with their own digital versions. The intention was good, although the choice of measure did not seem appropriate, given that in Spain we have a recent and failed similar experience: the inclusion of a levy on news aggregators and search engines with the reform of the Intellectual Property Law in 2014 (known as the Google tax or AEDE levy) which led to the closure of Google News in Spain and with that, of course, a decrease in traffic to digital newspapers.
The Article 13, for its part, established a new obligation for information society service providers (SSI), altering the safe harbor or liability exemption regime that had been in force until now. Specifically, it required those platforms that store and provide public access to large quantities of works or other performances uploaded by their users to adopt the necessary measures to prevent the use of unauthorized protected works on the Internet, measures such as filtering techniques y content recognition. Platforms such as YouTube or Instagram would therefore be obliged to obtain authorization (again, subject to payment) from authors, artists, and other subjects protected by the LPI in order to host protected works and performances posted by users; and if they fail to obtain such authorization, they would be subject to have technology capable of detecting these works and preventing them from being available to the public.
The intention of the legislator with this article was the same as that which inspires practically all intellectual property regulations: to ensure adequate compensation for authors and other rights holders for the effective use of their works, as they are considered the weaker party in negotiations for the transfer of rights for exploitation in the market. Once again, the intention was good, as it ultimately sought to promote the creation of culture by offering authors incentives to continue their work, an objective that, in principle, would be of equal interest to everyone.
So what was the problem? Automation and its cost. In order to comply with its obligation to detect content that infringes rights, platforms should use algorithms or bots to intercept them. The solution offered by these technologies is “yes or no,” which it would be impossible to distinguish between authorized and legal use, for example, because it is subject to a limitation such as in the case of quotations or parody, from an unauthorized and illegal one. It was predicted that, had the proposal gone ahead, in order to avoid possible claims, the general response would have been “no” and that platforms would automatically remove all copyrighted content. Something similar happened, with some differences, with the reform of the Intellectual Property Law in 1994, which held SSI responsible for specifically and massively (and not neutrally) facilitating the location of content offered illegally in a notorious manner, which, when in doubt, culminated in the closure of Megaupload and other link websites. Bearing in mind that in practice these cases must be assessed on a case-by-case basis, taking into account the context and special circumstances of each one, these platforms would be turning into a kind of cyber police censorship assigning it functions that until now have been performed by the courts. While it is true that the formula for exempting these providers from liability has proved ineffective, this legislative option seems, a priori, excessive, despite the fact that the Directive itself indicates that the measures to be taken must be proportionate.
The proposed directive did not seek to “end the Internet era.”, but to achieve such ambitious and desirable goals as reduce differences between national intellectual property rights regimes and enable greater access to protected works by users digitally and across borders. Authors and publishers are not interested in preventing users from accessing and enjoying the culture they help to create, but rather in receiving fair compensation for it. The measures we have explained may not have been the best solution to the problems they sought to solve, but it is important not to lose sight of the general spirit behind them. Perhaps, if Megaupload had not been shut down, Netflix would never have been created..
[Article written by Patricia Fernández Céspedes]
