129 11.04.2019

In late March 2019, the European Parliament voted in favor of the new Copyright Directive with the aim to update it for the modern times. While this sounds perfectly reasonable, the end results caused quite a bit of stir among the internet companies and many users.

The reasons for this were the controversial Article 11 and Article 13 which are part of the new Directive. They have been covered multiple times everywhere. So, we will briefly go through their content.

The changes

Article 11 aka “the link tax” envisions social media and search engines to pay media sites for the link previews (the picture, headline, a few words from the lead) that they use on their platforms. The reason: many users rely only on the previews to inform themselves and don’t visit the links. As a result, the social platforms attract all of the views and ads, while media sites lose out on traffic, ads and income.

Article 13 is the main issue of debate. It transfers more responsibilities to the online platforms and services regarding the content that their users upload and distribute via them. The companies have to make sure they do as much as they can to stop this, otherwise hefty fines can follow. As a result, big platforms may enforce upload filters which will block any unauthorized content. Smaller firms could be on the hook as they can’t afford such features. Users might see issues with the content they upload or want to share because of overly protective platforms.

The reality

After much debates, a couple of failed votes and rewrites, the EU changed some of the texts. It excluded memes and GIFs from the new copyright rules. Now use of copyright content will be allowed for reviews, critics, satire, parody and a few other cases within reason. People will be able to upload such content on social media without worrying about law infringement.

What if you upload copyrighted content to a cloud service? According to the current version of Article 11, cloud services are exempt from these rules. But if you upload a copyrighted piece to a cloud service and then distribute that link to it, you will be on the hook. The cloud service provider, though, shouldn’t be.

The main issues with Articles 11 and 13 are that they are very broad and vague. A lot of details about what to do to achieve the desired effects are missing or left to interpretation. Furthermore, each member state will have to decide on its own how to apply the new Directive to its local law.

For example, France feels Article 13 should apply to all platforms, regardless of their size. They have to show they have done all they possibly can to prevent uploads of copyrighted material without the right permission for it.

Germany, on the other hand, feels there should be different criteria. In the end, there are, but a company must meet them all in order to be exempt. Some criteria include being less than 3 years old, having fewer than 5 million unique monthly visitors and an annual turnover below €10M.

Things are still fluid. On April 15th the Council of Ministers will have the final vote. Ironically, that’s the day of the “Agriculture and Fisheries Council – so it will be the member states’ ministers of agriculture who will seal the deal on upload filters and the “link tax”, MEP Julia Reda says.

There’s still a possibility that the ministers will vote against the changes. If this happens, it will be back to the drawing board. That, though, is highly unlikely.