updated on 18 December 2018
QuestionWhat is the Digital Copyright Directive and what does it mean for digital content creators, publishers, users and platforms?
Are you interested in intellectual property law? Do you send memes and GIFs about training contract applications to your friends? Do you write or repost legal blogs and articles on what's happening in the legal sector? Do you stay commercially aware by keeping up with the news on online search engines?
If your answer to any of these questions is yes, you should pay attention to the EU's proposed Directive on Copyright in the Digital Single Market (Digital Copyright Directive) and how the directive could affect digital content creators (such as journalists, musicians, photographers and so on), publishers (such as news outlets), online service businesses (such as online platforms) and digital content users if it is implemented.
Copyright is the legal right given to creators of original materials to reward them for work that they have created and prevent others from improperly benefitting from that work.
To receive copyright protection, the work must be (i) original (ie, a product of the creator's own skill, labour or intellectual creation); and (ii) recorded (ie, written down, photographed or posted,. as copyright protects the physical form of the work, not the idea itself). Once a creator records their work, it will be automatically protected for a certain period of time, usually the period spanning the life of the creator plus 70 years after their death. During this period copyright holders are entitled to sell, share, change and copy their own work, while copyright law will prevent others from doing these things without the copyright holder's authority (usually granted for a fee).
Clearly copyright protects most creative work that we come across and online materials (including blogs, photographs, music recordings and even databases) are caught within the principle. In the digital age, social media and sharing platforms have made it easier than ever to record an original piece of work and release it to the world, while news aggregation sites are becoming the popular choice for readers to access news stories from a range of sources. However, copyright law has struggled to keep up to enforce copyright in a manner that properly balances the rights of creators against the desire for the advancement and free use of digital technology.
Copyright law in the UK is governed generally by the Copyright, Design and Patents Act 1988 and EU legislation. In 2016 the European Parliament proposed legislation which would extend copyright laws to keep up with the new digital age and members of the European Parliament voted to approve the content of the draft Digital Copyright Directive in September this year. Before the Digital Copyright Directive can be implemented, the European Parliament, Commission and Council must enter into negotiations to agree the final text of the directive.
There has been a lot of controversy surrounding the draft Digital Copyright Directive, with the most controversial provisions of the directive being article 11 regarding publisher copyright and article 13 regarding the responsibility of online platforms to ensure that uploads do not infringe copyright. If the Digital Copyright Directive is implemented as drafted, copyright law in these areas will differ significantly to the current legal position.
Legal changes if article 11 is adopted
Under current law, although content creators have copyright over their own work, copyright does not automatically extend to content publishers. For publishers to have the benefit of copyright, the creator of the content must first prove its own copyright ownership and then assign the copyright to the publisher.
If adopted, article 11 will extend copyright to immediately cover content publishers in the same way that it protects content creators. Although the article will not restrict legitimate, private, non-commercial use by individual users, it will essentially allow publishers to charge online content sharing platforms a licence fee to hyperlink to their content (if the hyperlink is described using more than one word).
Legal changes if article 13 is adopted
The current legal position is that online service providers are generally not held responsible for the actions of users that infringe copyright on their platforms. Instead, the burden has typically been on copyright holders to enforce their rights after their copyright has been infringed.
Article 13 would reverse this established legal precedent and make it the responsibility of online service providers to co-operate with copyright holders to ensure that content on their platform does not infringe copyright and that infringing materials are quickly removed. At the same time, online service providers would also have a duty to ensure that non-copyrighted material is not incorrectly restricted on their platforms.
The reason that the draft Digital Copyright Directive is so controversial is because it affects digital content creators, publishers, online service businesses (particularly online platforms) and digital content users in different ways.
Digital content creators and publishers
As drafted, the Digital Copyright Directive is clearly beneficial to content creators, as copyright of their digital materials should be better protected as a result of article 13. Also article 11, referred to by supporters as the "press publishers right", will extend new rights to publishers. Importantly for these stakeholders, the Digital Copyright Directive means money – the increased protection of digital copyright under the directive would mean that creators and publishers are more likely to be properly paid for use of their materials online.
The Digital Copyright Directive in its current form would undoubtedly be costly and burdensome for large online platforms.
Article 11 will force news aggregation platforms and search engines to buy licences from publishers to show those publisher’s news clips or hyperlink to news stories on their platforms. Article 13 will significantly impact online platforms whose business models rely on user-generated content. Article 13 has been referred to as an "upload filter", as online platforms will be expected to investigate material uploaded by users, to check whether it contains copyrighted material (such as copyrighted images or music), if the platform does not want to be held liable for the actions of users that infringe copyright.
Online platforms will have to balance this expectation against the requirement that they must not inappropriately restrict posts which do not infringe copyright. Certain content such as parodies and remixes will not fall under the Digital Copyright Directive and therefore should not be restricted by online platforms. However, it will be costly for online platforms to integrate technologies into their systems that are sophisticated enough to differentiate between copyrighted and non-copyrighted content (such as a satirical remix of a song compared to the original song).
Users of online platforms
Users who post their own original content on online platforms are content creators and enjoy the benefits above; however, critics consider that the Digital Copyright Directive may restrict the free use of technology by users.
It is now the norm for many of us to repost memes and GIFs online and use search engines to find news and information. However, as discussed above, the ability for users to upload these materials could be restricted under the Digital Copyright Directive. Critics have dubbed article 13 the "meme ban" as, even though it has been clarified that the article does not cover parodies, in reality platforms are likely to restrict ambiguous posts due to the risk of a copyright infringement claim being brought against them directly. Article 11 may also restrict online platforms from being able to operate free news aggregation platforms or search engines, because if they are required to pay for a licence to link to a news site, then online platforms may have to pass on the increased cost to users by charging a fee to access the site or search engine.
So, what happens next? The European Commission, European Council and European Parliament will negotiate on the current draft of the directive and attempt to reach a compromise on the final text. The agreed draft will then be passed back to the European Parliament and European Council in January 2019 to pass final votes before the Digital Copyright Directive can be given legal effect. If the final text cannot be agreed during the negotiations, a further amendment reading could take place where the text of the directive would be reconsidered. If, and when, the directive is passed it must then be transposed into domestic law by each member state within two years (however, it is unclear how the Digital Copyright Directive will interact with UK copyright laws post-Brexit).
So, keep an eye out – our use of digital content as we know it may be about to change!
Jaleela Johnson is a trainee solicitor at RPC.