(Aug. 31, 2018) On July 5, 2018, the European Parliament voted to halt the passage of the proposed Directive on Copyright in the Digital Single Market (the Directive), voting instead to reopen debate on the provisions by a margin of 318 votes to 278, with 31 abstentions. (Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market, Eur. Parl. Doc. COM(2016) 593 final, 2016/0280(COD) (2016), EUR-Lex website; Results of Votes, Annex, Eur. Parl. Doc. P8_­PV(2018)07-05(VOT)_EN, European Parliament website.)

The rejected Directive represented an attempt, as stated in part 1 of its Explanatory Memorandum, “at achieving a well-functioning market place for copyright” within the single market of the EU, with the aim that the proposed provisions would “have in the medium term a positive impact on the production and availability of content and on media pluralism, to the ultimate benefit of consumers.” The Directive also aimed to partially implement the Marrakesh VIP Treaty by providing a mandatory copyright exemption for books for the visually impaired. (Summary of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (MVT) (2013), WIPO (last visited Aug. 30, 2018); Peter Roudik, European Union: Exclusive Competence over Marrakesh Treaty Confirmed, GLOBAL LEGAL MONITOR (May 23, 2017).)

The Directive generated significant controversy, with criticism from internet technology companies, such as Google, Facebook, and the Wikimedia Foundation, to civil rights organizations and research centers. (Caroline Atkinson, European Copyright: There’s a Better Way, GOOGLE (Sept. 14, 2016); Sam Forsdick, European Parliament Votes Against “Publisher’s Right” Copyright Law Changes as Facebook Warns of “Unintended Consequences,” PRESS GAZETTE (July 5, 2018); Eileen Hershenov, How the EU Copyright Proposal Will Hurt the Web and Wikipedia, WIKIMEDIA (June 29, 2018); Article 13 Open Letter – Monitoring and Filtering of Internet Content Is Unacceptable, LIBERTIES (Oct. 16, 2017); EU Copyright Reform: Evidence on the Copyright in the Digital Single Market Directive, CREATE (Apr. 26, 2018). Articles 11 and 13 of the Directive were noted to be of particular concern as they seemed to dramatically restrict the kind of content that could lawfully be uploaded and shared over the internet by an ordinary user without a license.

 Article 11 of the Directive provides “publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications”—namely the right to limit or prevent reproduction of a given work by another and the right to authorize or prevent public access to a given work. (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society arts. 2 & 3(2), 2001 O.J. (L 167) 10.) However, such a provision, according to European Parliament Member Julia Reda, would effectively outlaw news aggregate websites that provide links to journalistic content created by others, such as Google News, Huffington Post, and Facebook News Feed. In order to link to such news stories, the linker would have to seek out every author of every linked article and receive permission to link to each individual story, which would limit the ability to effectively disseminate or fact check those stories. (Julia Reda, Extra Copyright for News Sites (“Link Tax”), JULIA REDA (last visited Aug. 30, 2018).)

Article 13 provides that

[i]nformation society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.

This article would require, for example, a photograph-sharing website to take appropriate and proportionate action to remove an upload of a copy of an artist’s photograph that one of its users has uploaded and is allowing an audience to access for free. (Julia Reda, Censorship Machines (Article 13), JULIA REDA (last visited Aug. 30, 2018).) It would also require that website to have an appropriate system that recognizes anyone but the original rightsholder who attempts to upload that picture, and any such uploads must be shut down preemptively to prevent the abuse of intellectual property. Article 13 suggests that an “appropriate and proportionate” method of achieving this would include “the use of effective content recognition technologies.” However, when one considers the volume of content uploaded to the internet, it clear that such technologies would be the only cost effective method—YouTube alone, for example, receives 300,000 video uploads a day. (Rasty Turek, What YouTube Looks Like in a Day [Infographic], MEDIUM (Feb. 10, 2016).) Automated systems are notorious for making false positive decisions, taking down content that is either covered by exemptions to copyright laws (Hitler “Downfall” Parodies Removed from YouTube, CBS NEWS (Apr. 21, 2010), such as works “for the purpose of caricature, parody or pastiche” (Directive 2001/29/EC art. 5(k)), or works that are not purposeful infringements of Copyright Laws at all (Francis Whittaker, Fans Howl over Taking Down World Cup Twitter Posts for Copyright Issues, NBC NEWS (last updated Aug. 28, 2018).

In accordance with the July vote, the Directive has been slated for renewed debate before the European Parliament and a vote on September 12, 2018. (Draft Agenda: Sittings of 10/09/2018 – 13/09/2018, Eur. Parl. Doc., Plenary Sittings Directorate (Aug. 7, 2018).)

Prepared by Ben Hills, Law Library intern, under the supervision of Clare Feikart-Ahalt, Senior Foreign Law Specialist.

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