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Copyright Law Reform – Back to the Drawing Board

The European Parliament has recently voted upon the now infamous proposed Copyright Law Directive, intended to overhaul current EU copyright laws. The proposal for this Directive is based on article 114 of the Treaty on the Functioning of the European Union (TFEU), which article allows the EU to adopt measures on the establishment and functioning of the internal market.

The proposed reform was sent back to the drawing board after being rejected by a vote taken by Members of the European Parliament. The most controversial articles of the proposed Directive were article 11 and 13. Article 11 outlines the protection of press publications concerning digital uses, while Article 13 addresses uses of protected content by online services.

The aforementioned controversy emerged after many campaigned to ‘#savetheinternet’, with the likes of Facebook, Google and a handful of other internet activists speaking against the proposed Directive. On the other hand, the proposed law received backing from major media outlets and creators of creative content, such as members of the music industry, who have pushed forward for the adoption of the Directive. The narrative varied on both sides with the bloc opposing the Directive stating that the blanket provisions emerging from the proposed Directive would mean that censorship levels of material posted online would increase. On the other hand, those supporting the Directive argued that persons creating creative content would be fairly paid in royalties when their work is utilised for commercial purposes.

What did the proposed Directive say?

Article 11

This proviso, which has been termed as the link tax article, is divided into four sections. The initial proviso confers publishers of press publications the rights emerging from Directive 2001/29/EC. This Directive titled, harmonisation of certain aspects of copyright and related rights in the information society, gives publishers the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form of their work.

Moreover, publishers are given the exclusive right to prohibit or authorise communication to the public of their work, in such a way that the public can access the mentioned work at any time and at any place. A preliminary ruling of the EU’S Court of Justice, in Stichting Brein v Ziggo BV and XS4ALL Internet BV Case (C-610/15), interpreted communication to the public as, “the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.”

The second proviso under Article 11 of the proposed copyright Directive continues to state that rights conferred to authors and to right holders in the formerly discussed proviso, do not impinge on other rights that authors and right holders have in relation to works incorporated in a press publication; such as the right to exploit works independently from the press publication in which they were published.

Certain exceptions and limitations are also adopted from the 2001/29/EC Directive, for instance, judicial remedies are given to content creators. Certain provisos emerging from the 2012/28/EU directive titled on certain permitted uses of orphan works, were also proposed in the new Directive.

Article 13

This article addresses the use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users.

Through the proposed Directive, information society providers such as Google and YouTube would be obliged to take measures whereby effective content recognition technology is used, appropriately and proportionately. Such a proviso has been criticised on the basis that ultimately such a measure would allow for the deletion of information or material if a certain likeness is found to existing copyrighted material.

Moreover, internet society providers must put in place a mechanism of redress to address any disputes that may arise over the measures put in place, which mechanism shall be available to users. The Directive also provides that Member States may facilitate a cooperative setting between stakeholders and right holders to define best practices.

The Directive will have to pass through a further legislative process and will be presented in September’s plenary of the European Parliament for further consideration.

For more information on Copyright Law and related areas please contact Dr Ian Gauci on igauci@gtgadvocates.com and Dr Bernice Saliba on bsaliba@gtgadvocates.com

Disclaimer: This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.