FIRST STEPS TOWARDS A NEW COPYRIGHT DIRECTIVE, BETWEEN ONLINE PROTECTION AND FAKE NEWS
The awaited session of the EU Parliament last Wednesday, that took place on September 12, ended with the approval of the first text of the reformed Copyright Directive by which the EU intends to regulate the exploitation of works protected by copyright online made available to users through certain categories of Internet Service Providers. Among the most controversial provisions are the protection of online news articles shared through links (the case of so-called snippets) and the communication to the public of content protected by copyright through the platforms dedicated to user-generated content (YouTube and the like). The impact (above all, political) of the Directive has generated an intense debate on the net also through the uncontrolled diffusion of fake news.
By voting of September 12, 2018, the European Union Parliament approved the reform of the Copyright Directive, starting negotiations between the Member States, the Council and the Commission of the European Union for the definition of the final legislative text, which will be voted on in January 2019. The latest text approved by the Parliament regulates different situations that have become very controversial, especially for public opinion.
On the one hand (Article 11) there is the (new) related right for publishers to obtain “fair compensation” for the digital use of their journalistic articles by ISP platforms also through links accompanied by an excerpt of the article itself (so-called snippet). The publishers themselves will be obliged to pay the authors of the articles (journalists) a share of the proceeds thus received. This measure was introduced in order to counter the “regression of the media landscape at regional level” (recital 31) and to “ensure the availability of reliable information” (recital 32). Precisely with regard to this forecast, numerous (fake) news circulated which would have affirmed that a real “Link-tax” would be introduced, a circumstance which, as we have seen, is excluded from the Directive. On the one hand, in fact, a “fair compensation” is provided for the publishers (and not a real tax) due by the ISPs (and not by the users) and on the other hand, this provision does not apply to “simple hyperlinks accompanied by single words” (Article 11). The Directive does not even seem to affect the “freedom of the Internet” (as, among other things, stated by the well-known on-line encyclopedia Wikipedia with a note of July 3, 2018, link here) but it actually intends to regulate the contents available on the net, discouraging the diffusion of unreliable information.
On the other hand, ISPs – such as YouTube and the like – will be held responsible for content uploaded by users to their online sharing platform (Article 13). The visibility of the content protected by copyright through the online platform represents in fact an act of communication to the public of the protected work and, as such, reserved for the author. Hence, the Directive provides for the possibility for such ISPs to conclude license agreements with the holders of the rights on the uploaded works or, alternatively, to cooperate with the holder of the right to ensure that works or other protected unauthorized material are not available on their services. The boundaries of this “cooperation” have not been established and therefore (referring to the text proposed by the EU Commission then amended by the Parliament) the ISP could equip itself with technological tools able to recognize in advance the uploading of protected works (i.e. content ID already in use on YouTube) or simply wait for the notification of the owner of the right before removing the content itself. Of course, in the absence of licensing and cooperation agreements, the ISP will have to be considered a competitor in the illegal reproduction and distribution of protected works, in derogation of the “safe harbor” provided by the Ecommerce Directive. It is also foreseen that the user who has uploaded an allegedly protected content can appeal (through methods established by the ISP or through a third-party ADR entity) against the unjustified removal of the content (Article 13).
These measures do not apply to, inter alia, micro and small enterprises and ISPs acting for non-commercial purposes such as online encyclopedias (Wikipedia) and online service providers where the content is uploaded with the permission of all the rights holders concerned, such as educational or scientific directories (Article 2 and recital 37bis).
At this point, we will have to wait until the next few weeks to see whether the current text approved by Parliament will become definitive or whether it will be further amended following further consultations. The result is certainly a first step towards an attempt to regulate the content posted on the Internet, which will obviously require “field” analysis to assess its effectiveness.