EU copyright directive (Part 2) with analysis of Article 11 and Article 13

Since the European Union (EU) Parliament has voted in favor of the Copyright Directive, analysts have been discussing the impact of Article 11 and Article 13.

As discussed in our earlier post on EU copyright law a commentary, Article 3 is also important because it recommends providing exemptions for research institutions.

Article 11 of EU copyright law

The Article provides “Protection of press publications concerning digital uses”.

Following are the highlights of Article 11 of the new EU copyright laws:

• This Article falls under the chapter that seeks to lay down the measures for a smoothly functioning, responsible marketplace for copyright.
• It categorically asks member-states to provide for rights of press publications for re-use of their content in the digital space.
•  It also acknowledges the rights of authors/creators of content used by press publications.
• It clearly gives authors freedom to exploit their works, independent of press publications.
• It sets the term of copyright: 20 years after the publication of the press publication, counted from 1st January of the year following  the date of publication.

Criticism of Article 11

Some think EU copyright law fair use is nearly impossible. That’s because one interpretation says using even snippets from journalistic nature require prior permission.

(Remember how Google had promptly shut down Google News in Spain ? The Spanish government imposed a tax on links shared by news aggregators and Google News simply walked out.)

What the lawmakers have forgotten or conveniently ignored is that when you’re not attaching snippets with hyperlinks, you’re actually encouraging fake news. Look at it differently: in absence of a link, how’d the reader know if the news are authentic?

Finally, it may be at conflict with the general best practices, both formal and informal, of publications worldwide namely: the right to free citation.

Article 13 of EU copyright law

The Article deals with service providers that store and provide access to content matter uploaded by users.

Following are the highlights of Article 13 of the new EU copyright laws:

• It goes under the chapter titled Certain uses of protected content by online services.
• It asks service-providers to take measures to compliance of agreement with right-holders when providing access to that content.
• It categorically states the measures to safeguard the interest of right-holders should be proportionate.
• It entitles the right-holders to receive information on the measures used by the service providers to protect their rights.
• It requires service providers to have in place redressal mechanism to attend to disputes.
• It stresses a phrase “service providers that store and provide to the public …large amounts of works” which hints at exemption to smaller businesses.

Criticism of Article 13

Article 13 is arguably the most criticized article in the new EU copyright law.

It’s not exactly clear what prompted the German politician Günther Oettinger to bring in the entire copyright law, but the EU copyright law 2018 is facing enormous criticism.

To begin with, the Article encourages service providers to use technology to detect the copyright details of every single piece of content uploaded on their website. It is estimated YouTube had spend US$ 100 million in developing a tool that checks for plagiarism.

Now you can imagine how helpless will smaller organizations feel if they had to develop a tool of this size.

But it’s not just that. YouTube CEO  Susan Wojcicki says such practices can put the entire internet freedom and creativity at risk.

Principal opposition and support to the EU copyright law

Here’s a collection of the various views for and against the proposed law.

1. Opposition: The legislation requires that platforms proactively work with rightsholders to stop users uploading copyrighted content. The only way to do so would be to scan all data being uploaded to sites like YouTube and Facebook. This would create an incredible burden for small platforms, and could be used as a mechanism for widespread censorship. (TheVerge).
2. Support: UK Music CEO Michael Dugher has also come out in support of the copyright law, accusing Google of “behaving like a corporate vulture feeding off the creators and investors who generate the music content shared by hundreds of millions on YouTube. (Alphr).
3. Opposition: The proposals would limit our ability to actively participate online to benefit the business models of media conglomerates: Upload filters on internet platforms, a “link tax” for news content and a very narrow exception for text and data mining would curtail how we can share links, upload media and work with data. (Julia Reda)
4. Support: The EU Copyright Directive is a unique opportunity for change. It lays down important principles that will benefit the interests of audiovisual creators in Europe, advance the cause for fair remuneration, transparency and cultural diversity across the world (ScreenDaily).
5. Opposition: “Article 13 takes an unprecedented step towards the transformation of the internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users,” (CNET)
6. Support: “This new law, if enacted as proposed by the European Parliament, will stop these big platforms from hiding behind outdated laws and force them to sit down with rights holders, wherever they are, and pay them fairly,” says CISAC Director General Gadi Oron. (HollywoodReporter)