European Council Adopts Digital Single Market Copyright Directive

The controversial Copyright Directive (2016/0280), which aims to modernise EU copyright rules ensuring development of a "robust and well-functioning digital single market" has been approved, backed by 19 countries at an EU Council Vote. Six countries voted against the Directive. The Directive will now be published in the Official Journal of the EU following which member states will have two years to bring in local laws implementing the Directive.

Two of the most controversial parts of the Directive, Articles 11 and 13 (renumbered to Articles 15 and 17) have attracted fierce debate (previously covered by HGF Law here.

Article 11 (now Article 15) - The so called 'link tax' - allows publishers of news articles to charge for the use of the publications when snippets of this content is displayed, for example when more than "single words or very short extracts" of news articles are reproduced.

Article 13 (now Article 17) - Imposes obligations on providers to take action against content which has not been authorised for upload (for example a movie uploaded to a video streaming platform without the consent of the copyright owner). Anyone sharing content must get permission from rights owners (or have made best possible efforts to obtain permission).

Why is the Directive controversial?

The legislation has been criticised by campaigners for internet freedom and tech companies such as Google, YouTube and Facebook who are concerned about internet censorship. Tech firms have a right to be worried, given that Article 17 makes platforms liable for uploaded content that breaches copyright and requires them to obtain licences.

One of the main concerns is that "filtering systems" which block unauthorised materials before they are uploaded to the platform will need to be used, however these may fail to differentiate between infringing and fair use content.

The link tax could also result in online sources, such as search engines and news aggregators ceasing to display results from news companies rather than paying money to licence these snippets. Critics of this provision argue that this may result in online news companies actually losing their audiences and revenue, given that large amounts of web traffic is usually driven to their companies due to the availability of these news snippets.

On the other side of the argument, there are a large number of celebrities in creative fields, such as Paul McCartney and Debbie Harry, and organisations such as PRS...