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The EU Directive on Copyright

  -  AFM Vice President from Canada

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I recently attended a briefing sponsored by the Canadian Music Publishers Association at the law offices of Cassels Brock. The keynote speakers were Erich Carey, vice president and senior counsel at the National Music Publishers Association, and John Phelan, director general of the International Confederation of Music Publishers.

Their message was that big changes are coming to online copyright across the European Union. After years of debate and negotiations, politicians have passed what proved to be controversial amendments following a final vote in the European Parliament. Critics have been opposed to two specific parts of the law: Article 11 and Article 13, which form part of the wider regulations.

The European Union Directive on Copyright in the Digital Single Market, to use its full name, requires the likes of YouTube, Facebook, and Twitter to take more responsibility for copyrighted material being shared illegally on their platforms. Detractors claim that the most controversial segment, Article 13, will have a detrimental impact on creators online. YouTube, and YouTubers, have become the most vocal opponents of the proposal.

On April 15, the European Council—the political body composed of government ministers from each of the 28 EU member states—voted to adopt into EU law the copyright directive. Six member states (Finland, Italy, Luxembourg, the Netherlands, Poland, and Sweden) voted against adopting the directive while three (Belgium, Estonia, and Slovenia) abstained from the vote. The remaining 19 member states all voted in the affirmative.

So, what is the Directive on Copyright? It’s designed to limit how copyrighted content is shared on online platforms. EU directives are a form of legislation that set an objective for member states to achieve. The directive is not yet legislation, as individual member states must now effect transposition by 2021—they have a two-year period in which to turn the new rules into their own national law.

The directive would make online platforms and aggregator sites liable for copyright infringements, and supposedly direct more revenue from tech giants towards artists and journalists. Currently, platforms such as YouTube aren’t responsible for copyright violations, although they must remove that content when directed to do so by the rights holders. Proponents of the Directive on Copyright argue that this means that people are listening to, watching, and reading material without the creators being properly paid for it.

So what does it mean? Any websites that host large amounts of user-generated content (think YouTube, Twitter, and Facebook) are responsible for taking down content if it infringes on copyright. But things aren’t quite that simple. How would these platforms identify and remove this content? An earlier version of the directive referred to “proportionate content recognition technologies,” which means platform owners use automated filters to scan every piece of uploaded content and stop anything that might violate copyright from being uploaded. However, the text doesn’t stipulate filters must be used, it only requires that platforms either license or remove materials that infringe on copyright.

The final wording of Article 13 sets out exactly which platforms will require upload filters and which ones won’t. The only way a site that hosts user-generated content can avoid putting in place an upload filter is if it fulfils all three of the following criteria: It has been available for fewer than three years; it has an annual turnover below €10 million, and it had fewer than
5 million unique monthly visitors.

The other side of the debate, critics of the directive, include the influential Silicon Valley lobbying group the Computer and Communications Industry Association (CCIA), whose members include Google, Facebook, eBay, Amazon, and Netflix. YouTube is by far the most vocal critic of Article 13, and it’s interesting to note that parent corporation Google released
€320 million to lobby against it.

Advocates of the directive say it will balance the playing field between American tech giants and European content creators, giving the copyright holders power over how Internet platforms distribute their content. “This is a vote against content theft,” said Xavier Bouckaert, president of the European Magazine Media Association in a press statement. “Publishers of all sizes and other creators will now have the right to set terms and conditions for others to reuse their content commercially, as is only fair and appropriate.”

Time will tell if the media giants begin to behave themselves with regard to copyright violations, or if they escalate their efforts to influence legislators in the US and Canada and continue to exploit musicians and rights holders.