29 March 2019

The Directive forms part of a wider initiative to update copyright rules for the digital age. Its broad aim is to protect creators of content through placing various obligations on the online platforms that currently benefit from copyright content being shared. However, two sections of the Directive, Articles 11 and 13, have proved particularly contentious and we take a further look at these provisions in this article.

What does Article 11 say?

Article 11 (Article 15 under the most recent consolidated text of the Directive) states that press publications' may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers'. This recognises that many people now access their news through search engines and news aggregator platforms. It is intended to require such platforms to pay publishers for using parts of their articles. However, it is not clear how this will work in practice and service providers have expressed concerns that it will apply when even just a small section of an article is shared or in many instances where a hyperlink is provided. This has led to Article 11 being dubbed as a 'link tax'.

What does Article 13 say?

Article 13 (now Article 17 under the most recent consolidated text of the Directive) states that 'online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services.' Platforms that host significant user generated content, such as YouTube and Twitter, will therefore be required to license copyright protected materials from rights holders. Where this is not possible, they will be required to filter or remove copyright material. Such companies may be held liable for a failure to do so, unless they can demonstrate the following:

  • 'best efforts' have been made to get permission from the copyright holder
  • 'best efforts' have been made to ensure that infringing material is not made available on the service
  • they acted quickly to remove or disable access to the copyrighted material

Generators of content have largely supported this proposal. However, supporters of a ‘free internet’ and content sharing service providers have been vocal in their opposition. Whilst the Directive contains exceptions for newer, smaller providers, it appears that in the absence of further guidance, the majority of providers will rely on deploying 'upload filters' in order to comply with requirements. Critics argue that such filters may inadvertently filter out legal content and, as such, act as a form of online censorship that ultimately stifles creativity.

The exact effect of Article 13 will only become clearer once each Member State decides how it interprets terms such as 'best efforts' when transposing the Directive into national law and provides further guidance to stakeholders. However, regardless of implementation, these changes are likely to lead to a significant shift in the balance of power back towards rights holders.

Next steps

Once the Directive has been approved by the EU Council (votes are scheduled for 8 or 15 April 2019) it will be published in the Official Journal of the EU, coming into force 20 days later. EU Member States will then have two years to interpret and implement the Directive into national law. With the UK set to leave the EU, there is some uncertainty as to whether the Directive will be implemented in here. However, UK businesses operating in the EU will need to ensure that they comply with the Directive as implemented in each Member State. Whether Member States will adopt consistent or differing interpretations of the Directive remains to be seen.

How can Burges Salmon help?

For further information, please contact Helen Scott-Lawler or your usual intellectual property team contact.

Key contact

Helen Scott-Lawler

Helen Scott-Lawler Partner

  • Head of Food and Drink
  • Commercial
  • Intellectual Property and Media

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