The EU is still looking to change copyright law

EU copyright law is no exception and is now getting similar treatment in the form of a proposed new Copyright Directive with the aim of protecting copyright holders and creating a more level playing field.

The Copyright Directive and Brexit

If the Directive is adopted before the Brexit deadline of 29 March 2019 it will be transposed into UK national law and would bring about significant reform in this area that has fast become one of the most hotly debated (and potentially far reaching) mandates of recent times.

The clock is ticking and all eyes are watching to see how this sensitive subject plays out.

Possible impacts of the changes for online publishers

As well as making online platforms pay for linking to news (largely to protect publishers and news outlets), the most controversial aspect of the Directive (Article 13) essentially pits the internet conglomerates against artists and content creators.

Article 13 puts the responsibility on websites to police and enforce copyright on user-generated content. This would hit hosting providers like YouTube and Twitter hard but also affects any other platforms with an upload functionality which means many smaller start-ups and SMEs will need to be aware of any further developments.

The laws would apply if the main purpose (or one of the main purposes) of the service is to provide access to large amounts of user-generated copyrighted content (e.g. text, music, images, photos, code), which are organised and promoted for profit-making purposes.

Service providers must demonstrate that they have made best efforts to prevent the availability of specific content identified by rightsholders, by implementing effective and proportionate measures, and that they act quickly to remove or disable it upon notification.

The intent behind the new measures is that creators (particularly in the music industry) would be more likely to receive fair remuneration for the online use of their copyright works. This is because websites would be prevented from using artists’ content for profit unless they have their permission, effectively forcing internet platforms to enter into licensing agreements or prevent the availability of their works on their site.

What will this mean for SMEs?

Sites featuring user-generated content are becoming increasingly popular and SMEs are not being left behind when it comes to capitalising on this market. These smaller brands are less equipped than the Pinterests of this world when it comes to shouldering the cost and burden of having to put in place content filter and take-down mechanisms.

If they are to continue doing what they are doing, then their responsiveness to addressing potential copyright infringement will have to become far slicker.

Opponents to the proposed copyright changes argue that these technologies are expensive and would impact start-ups and SMEs far more deeply than the likes of Google and Facebook.

It may well be that smaller publishers have to employ extra staff and devote extra resources to keeping close control on what is placed on their site. For some this consideration will have major impacts on the profitability of their entire business model.

Opposition to the changes

Reversing this liability and obliging platforms to actively filter and censor all content, due to its sheer volume, would likely require the implementation of automated content-recognition and review systems to identify and expose infringement.

Critics also claim that these automated tools are still in their infancy and could lead to the risk of over-censorship where things like parodies, memes and remixes could become a thing of the past (even though copyright law limitations and exceptions mean that they are entirely legal). The upshot could result in the stifling of creativity, internet freedom and general freedom of expression. Some go as far as claiming the reforms could change the fundamental nature of the internet.

What next?

Much to the delight of the Directive’s critics and due to the backlash, the draft proposal was rejected on 5 July by the European Parliament by a margin of 318 to 278. But this doesn’t mean it’s dead in the water. It will now go back to the drawing board to face further amendments and will be put to the vote again in September. Watch this space to keep on top of all the potential changes to IP and copyright law as dictated by the EU.

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