In the light of technological evolutions and the challenges of the digital environment, the protection of authors’ rights has become more complex. How can litigious contents be minimised? How to protect ones writing on blogs? What equilibrium must be found between freedom of expression, including the right to share content, and the authors’ rights?

The European Union has decided to tackle the issue with its proposal for a Directive on copyright in the Digital Single Market (COM/2016/0280). This proposal was first introduced in 2016 with a will to modernise European regulations on the subject. Indeed, the European Commission had previously carried out a review of the existing copyright rules between 2013 and 2016. The review highlighted the difficulties in the use of copyright-protected content, notably in the digital and cross-border context. The proposal aims at resolving these difficulties. However, this proposal has raised controversies regarding its articles 11 and 13.

In this context, the EU Parliament accepted on 12 September 2018 a draft proposal with minimal amendments that it had rejected in July 2018. Mathias Avocats has provided a brief explanation of the current legal situation before diving into its analysis of the proposal for a Directive and more specifically the contentious issues.

What is the current situation ?

Copyright is a well known subject within the European Union (EU). Indeed, the latter first addressed the subject with Directive 96/9/EC on the legal protection of databases. Further Directives were taken which led to a patchwork of EU legislations each regulating a specific area of copyrights (ex: computer programs, orphan works, etc.).

The Directive setting out the framework for copyrights – and which appears the most pertinent to compare with the proposal for a Directive on copyright in the Digital Single Market – is Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

It holds that each Member State must provide authors with exclusive rights on their works such as reproduction, communication to the public or distribution. It also sets a list of exceptions under which the exclusive rights given to authors are not violated and in which cases a person, other than the author, may use the author’s work (ex: parody, scientific research, criticism or review, private study, etc.).

It must however be underlined that Directives are not directly applicable and require an implementation by the Member States through national law. This implies that the laws in different Member States may vary despite the fact that they must respect common principles and conditions. There is thus a double layer of patchwork legislation: on the EU level and within Member States.

What does the article 11 of the proposal imply ?

Article 11 holds that press publishers must be provided with the right of reproduction and the right of communication to the public of works and right of making available to the public other subject-matter for the digital use of their press publications. On the one hand, the right of reproduction is the right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part works, including performances, films and broadcasts. On the other hand, the right of communication to the public is the right to authorise or prohibit the communication or making available to the public of works.

In practice, this article implies that publishers of digital press publications will be able to charge licensing fees for links to their content and, if this is not the case, file an action against a person inserting a hyperlink to their work without their authorisation. For example, a person could no longer add a source to an article in Wikipedia without first obtaining the consent or licence of the publisher. These consequences have led to an uprise of over 50 organisations. In an open letter to the Rapporteur Axel Voss on EU Copyright Reform, they argued that if Article 11 were to pass, freedom of speech and quality journalism would be threatened.

In an attempt to adress this concern, the MEPs have excluded “hyperlinks which are accompanied by individual words” as well as « legitimate private and non-commercial use of press publications by individual users » from the provision’s scope (amendments 151, 152, 153, 154 and 155). These are certainly notions that will be difficult to interpret.

What does the article 13 of the proposal imply ?

Article 13 states that information society service providers which store and provide public access to large amounts of protected works or other subject-matter uploaded by their uses must take measures to ensure that the agreement concluded with rightsholders for the use of their works or other subject-matter are respected. This implies that information society service providers must implement measures preventing the unauthorised use of protected works.

This is a new obligation for information society service providers. They are currently under the mere obligation to promptly remove protected works when they have been informed of copyright infringement. It is most likely that said providers will implement automated filtering methods which will automatically block the protected content unless a licence has been given. The main issue arising from this new obligation is the right to freedom of expression. Automated decision making processes rely on an algorithm devoid of human interference. For example, how can the algorithm be trained to detect parody, which is one of the exceptions to right holder’s rights? This issue has been raised in an open letter to the President of the European Parliament.

In an attempt to adress this concern, MEPs have included further details which are also quite challenging to interpret. It is now stated that « Cooperation between online content service providers and right holders shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright » (amendments 156, 157, 158, 159, 160 and 161). In addition, “redress mechanisms” processed by humans shall be implemented in case of unjustified removals of their content.

The Parliament’s proposal for a directive will now be submitted to the EU Commission and the EU Council for approval. Mathias Avocats will be sure to keep you informed. If you have any questions regarding copyright or Intellectual Property, the firm remains at your disposal.