Crystal N. Lowery

Associate Editor

Loyola University Chicago School of Law, JD 2020

On September 12, 2018, the European Parliament approved amendments to the Directive on Copyright in the Digital Single Market, commonly known as the EU Copyright Directive (the “Directive”). The amendments primarily cover copyright protection over internet resources. There are two parts of the Directive that have caused concern: Articles 11 and 13. Article 11, also referred to as the “link tax,” provides publishers with a method to collect revenue from news content shared online. Article 13, also referred to as the “upload filter,” holds Internet platforms, such as Facebook and Twitter, liable for copyright infringement committed by users. Together, large and small platform providers that would have to comply with these new regulations have declared that the enactment of these articles places a heavier burden on service providers. Critics of these amendments also say the requirements are likely to lead to increased taxation and more lawsuits. The final vote on the directive is scheduled for January 2019.

The EU Copyright Directive

The European Parliament proposed the EU Copyright Directive to allow access to content across borders, improve copyright rules for research, and to enact a fair online marketplace for copyright holders. Platform providers have announced concerns over user content such as snippets of videos including GIFS, still shots from video games, and photos taken by fans at sporting events. However, most concerns from the proposed Copyright Directive arise from Articles 11 and 13.

Article 11 – The Requirements and Considerations

Article 11 requires news aggregation and search engines to pay publishers for listing parts of media articles and linking to sources from other sites. Under Article 11, publications “may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.” The exact amounts of remuneration are not dictated under the Directive and may be left to EU member countries or news publishers to determine fair payments. This requirement could prevent many small platforms from being able to aggregate and provide media to end users, and can lead to a price surge if news publishers are left to determine fair value.

The goal of Article 11 is to establish fair payment for published work and prevent copyright infringement and plagiarism. Copyright protection for online content has been slow to catch up to the copyright protections imposed for print or physical content. Currently, there is no requirement that news aggregation websites, such as Facebook and Google, must provide payment to publishers for use of their work.

Critics of Article 11 call such payment a “link tax”, as this provision may require the hosting site to pay a tax to the original publisher. There is no guidance on exactly how much of an original publisher’s article must be shared by a platform to require payment, however the Directive specifies that hyperlinks accompanied by individual words would not induce payment. The Directive also contains an exception for private and non-commercial use of publications, preventing taxes on individuals sharing links over social media platforms. However, the law does require media platforms to monitor links posted on their websites and could hold both the end user and platform provider accountable for copyright infringement if full articles are posted by end users.

Article 13 – The Considerations

Article 13 requires 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.” Critics of the Directive argue that the article changes the law by holding internet platforms responsible for user activity, by requiring an upload filter to prevent copyright infringement, and not allowing for copyright flexibility with quotation or parody.

The goal of Article 13 is to ensure that original copyright owners are compensated for the use of their copyright-protected content on Internet platforms. It requires platforms such as YouTube, Facebook, Reddit, and Tumblr to obtain a license to display copyrighted content and monitor uploads by platform users. A license is required for music videos, film, and television clips and requires platforms to pay appropriate compensation for hosting such content. The Article also requires platforms to police user uploads by implementing an upload filter and monitoring content to prevent copyright violations.

Opponents argue that the law violates fair use laws, which allow copying of licensed material for limited and transformative purposes. Many are concerned that Article 13 amounts to full internet censorship and will result in overall government control and surveillance of all users. In June 2018, major internet platform providers signed a joint letter to the EU Parliament in opposition to Article 13. The letter encourages the EU to consider using other measures to prevent copyright infringement and ensure payment to rights holders and also questions the validity of the law and requests providers, rights holders, and the government reach a more thoughtful agreement.

Update: May 17, 2019

The Directive may have larger implications for those people who make their living, or supplement income by live-streaming video games. According to a recent survey, many live-streaming video game players stated they would “be disuaded from streaming” if there was a likelihood liability for copyright violations. In 2017, around 666 million people tuned in to video-game streaming platforms garnering approximately $36 billion in revenue. This growing industry for streamers is now in danger of violating the Copyright Directive. For more information on EU video game streamers and Article 13 see Article 13 v. Video Game Streamers and a comprehensive study at Comparitech.

The Future of the Internet

Although platform providers are concerned about the EU Copyright Directive, the law continues to be amended by Parliament and will not go to a final vote until 2019. Until the final vote, the exact implications for service providers and end-users can only be speculated. The Directive could mean stronger regulation of Internet content with strict upload filters, and trouble for smaller Internet platforms if they cannot pay the required fees and taxes that would be imposed. For copyright holders and digital publishers, these amendments require equal payment for the use of their protected printed and electronic work, bringing copyright regulations over online content up to speed. Compliance with the Directive could mean increased accountability for the platform providers, increased restrictions for the end users, and an increase in lawsuits by content creators asserting copyright infringement.