On 26 March 2019, the European Parliament approved the EU Copyright Directive.

What happens next?

Member states will have two years to implement the directive at a national level once adopted.

The news will not please the large online content aggregators which have been extensively lobbying against the implementation of the Copyright Directive. The controversial Article 17 (the so-called “Meme Ban”) has been one of the main reasons for the aggregators’ objections because it is argued that Article 13 encourages censorship and impedes internet freedom.

For an overview of the also controversial so called ‘Link Tax’ (Article 15) see our prior blog post.

What is Article 17?

Article 17 imposes an obligation on online content sharing providers to obtain authorisation from the rightholder for use of copyright-protected works. Importantly, this extends to subject matter uploaded by users of an online content sharing platform.

Quotations, criticism, review, parody or use for the purpose of caricature will not fall within the remit of Article 17.

What are the main controversies of Article 17?

  • While Article 17 aims to provide additional protection for authors and artists, the proposed wording has been fiercely criticised by large online content providers such as YouTube and Facebook. It essentially creates an onus for online content providers to monitor all uploads made by its users to ensure no copyright infringement has occurred.
  • It would require the implementation of costly technology which could detect when users were sharing copyrighted material on their sites. YouTube has argued that it would result in extensive blocking of content in the EU because of the uncertainty and complexity of monitoring copyright infringement.
  • Smaller companies may not be able to afford to implement expensive filtering technology.
  • Online content service providers will also be required to implement an effective complaints mechanism for users of the service in cases of disputes over the removal or access to subject matter.
  • Technology companies will also face the prospect of incurring liability for unauthorised acts of online copyright protected content usage, unless they can establish active compliance with the following exceptions:
    • made best efforts to obtain an authorisation;
    • made best efforts to ensure the unavailability of specific works (for which the rightholders have provided the relevant information); and
    • acted expeditiously to remove the notified works and to prevent any future uploads.

Following today’s announcement, we await the outcome of the European Council vote.

Click here for a general overview of the Copyright Reform.