Risks posed to freedom of information by new EU legislation on copyright

On Tuesday 26 March 2019, Members of the European Parliament voted 348 in favour and 274 against the Copyright Directive (the “Directive”), despite fears the it may disproportionally limit freedom of information online.

The passage of the Directive through the European Parliament has not been without controversy, with numerous groups staging online protests under the hash-tagged banner #SaveYourInternet, one petition reaching over five million signatures, and thousands lining the streets of Berlin, Brussels, Luxembourg and Zurich among many others to communicate their concerns. The impetus behind the consternation is a fear that the Directive – specifically Articles 11 and 13 – will jeopardise internet users’ ability to disseminate their work and comment or share the news. On 24 May 2019 Poland submitted a complaint to the Court of Justice of the European Union with the Polish Deputy Foreign Minister stating that the “system may result in adopting regulations that are analogous to preventative censorship.” Whereas legislators consider reform to be crucial for better protection of intellectual property in the internet age.

It is appropriate, therefore, to consider the problematic articles in turn.

Article 11

This contains an extension of the provisions in the Copyright Directive 2001, whereby publishers (under the new Directive) will now benefit from a direct copyright over “online use of their press publications by information society service providers” which has been widely dubbed the “link tax”. Part of the impact of the new Article 11 in its current form will be to obligate parties to pay to feature online small extracts of other people’s work. For example, and this seems to be the most immediate consequence of Article 11, operators of search engines will have to pay to share headlines and initial section of articles or websites. Predictably this has been met with stiff resistance from concerned parties, with Google in particular noting some concerns about how it will impact the services that it provides in Europe. The clear risk is that search engines will cease to “preview” news websites, articles and stories; if this happens, then it is the individual internet user who will have less information at their fingertips, and ultimately lose out.

Article 13

Under Article 13, parties who operate content-sharing services (that allow others to upload content, e.g. YouTube) will have to monitor all the content and ensure that none of it violates copyright law. Article 13 sets out that the relevant content-sharing service provider will be held liable for any breach unless it had utilised best efforts to 1) acquire the necessary permission from the copyright holder and 2) ensure that any unauthorised material identified by the copyright holder was not shared. This places a huge burden on these parties – who will presumably have to filter all content for copyright violations – which will be expensive and time consuming. This is before we consider that the algorithms used to identify copyrighted material will not be 100% accurate – both allowing such material through and blocking legitimate material. The concern here is that as a result of these measures, only larger news organisations will have the resources to do this adequately, thereby reducing the variety and number of content-sharing sites. Again, this would serve to reduce the amount of information available to the individual internet user in the same manner as Article 11. However, there are some limitations that will be helpful: Article 13 applies lighter obligations to content-sharing services which have been operating in the European Union for less than 3 years and have an annual turnover of fewer than 10 million euros, and it specifically does not apply to online marketplaces, cloud storage services, and communication services.

Read together, it is easy to see why Articles 11 and 13 of the Directive have prompted such widespread criticism and apprehension from YouTube, Google, and many others. This may have a limited impact in the UK, of course, as the current timeline for implementation does not see the new Directive implemented until next month (June 2019), with member states having until early 2021 to give effect to its provisions. In its current form the Directive does risk limiting freedom of information for internet users.

Co-authored by Calum Humphrey.