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EU Copyright Directive: Link Tax’s And Upload Filters

The EU has introduced a new directive on copyright to reduce copyright violations by shifting responsibility of copyright protection on online sharing platforms. One significant consequence of the new Directive on Copyright in the Digital Single Market is that online sharing platforms such as Google, Facebook, YouTube and Twitter will need to regulate content to ensure that it is not infringing copyright.

Controversies faced by the Directive on Copyright in the Digital Single Market

The Directive on Copyright in the Digital Single Market (‘Directive on Copyright’) was first introduced in the European Parliament on 20 June 2018 and was met with equally fierce oppositions and support. Particularly, Article 11 and Article 13 of the Directive on Copyright have caused a stir in the public, with some critics claiming the effect of the Directive would ‘threaten the Internet as we know it’.

As of 12 September 2018, the amended version of the Directive on Copyright was accepted by the European Parliament.

Article 11 – introducing a “Link tax”

Article 11 has been dubbed a “link tax” by opponents of the Directive on Copyright. Essentially, Article 11 requires that online sharing platforms such as Google to pay publishers for showing extracts of news articles.

Though it is unclear at this stage to how much content would need to be displayed in a link for Article 11 to apply, except that it will not “extend to mere hyperlinks which are accompanied by individual words”.

Further, it is clear from the amended version of Article 11 that it will not prevent “legitimate private and non-commercial use of press publications by individual users”.

In that regard, individual users are exempted from the provisions of Article 11 so long as it is for legitimate private and non-commercial uses.

 Article 13 – introducing an “upload filter”

Article 13 will impose positive obligations on ‘online sharing platforms’ requiring them to actively filter or take down copyright protected content. Some critics have asserted this as requiring sites like Facebook and Twitter to introduce “upload filters”. A major concern is that upload filters would not be able to differentiate between legitimate use of copyright material, such as for fair dealing exceptions under the Copyright Act. One such exception exists for parody and satire which allows for ‘memes’ to use and share copyright protected material.

Relevantly, the amended text of Article 13 states that:

“In the absence of licensing agreement with rights holders, online content sharing service providers shall ensure the non-availability of, or remove expeditiously for their services, copyright-protected works or other subject matter that are identified by right holders”

While the effect of Article 13 is unknown at this stage, it has not stopped opponents from being vocal about its potential consequences. Indeed, YouTube CEO Susan Wojcicki stated in a recent twitter post that “Article 13 could put the creative economy of creators and artist around the world at risk”.

 Take-Away Points

  • The effects of the new Directive on Copyright in the Digital Single Market could have a profound effect on internet users, even in Australia.
  • The impact of Article 11 and Article 13 may result in a significant reduction of available online content.
  • Article 13 places a heavy burden on online sharing platforms, yet the repercussions of this are still unknown. It will be interesting to see how large platforms such as Facebook and Google respond to these measures and what effect this will have on the use and availability of copyright protected material for individuals.

Sam Gilbert, IP and Technology Consultant, B.A., LL.B  University of Technology, Sydney

 If you would like to know more about this article or the new EU Directive on Copyright, please do not hesitate to get in contact with the team at W3IP Law on 1300 776 614 or 0451 951 528.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.

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