Controversial New EU Copyright Rules Pass Another Legal Hurdle

Posted on March 26, 2019 by Paul Thurrott in Cloud with 42 Comments

The European Parliament has given its final approval to the Copyright Directive, a new set of laws aimed at big U.S tech firms that “scrape” data from content creators without their permission.

“The directive introduces mandatory exceptions to copyright for the purposes of text and data mining, online teaching activities and the preservation and online dissemination of cultural heritage,” a European Council press release from February explains. “The directive introduces a new right for press publishers for the digital use of their press publications. Authors of works incorporated in the press publication in question will be entitled to a share of the press publisher’s revenue deriving from this new right.”

The Copyright Directive contains two controversial articles, both of which survived intense scrutiny and criticism during its gestation.

The first, Article 11, is often referred to as the link tax because it allows publishes to charge companies that scrape their content to use as snippets in search results or in news aggregations services. The second, Article 17, is called the upload filter and it makes new content policing requirements of sites like YouTube that allow users to post their own content.

Not unexpectedly, passage of the Copyright Directive was met with harsh criticism by certain companies and organizations.

“The directive will lead to legal uncertainty and will hurt Europe’s creative and digital economies,” a Google statement reads. “The details matter, and we look forward to working with policy makers, publishers, creators and rights holders.”

The Electronic Frontier Foundation was even more critical, noting that the EU has “abandoned common sense.”

“The Directive is written so that any owner of copyrighted material can demand satisfaction from an Internet service, and we’ve already seen that the rightsholders are by no means united on what Big Tech should be doing,” the EFF explains. “Whatever Internet companies and organizations do to comply with twenty-seven or more national laws – from dropping links to European news sites entirely, to upping their already over-sensitive filtering systems, or seeking to strike deals with key media conglomerates – will be challenged by one rightsholder faction or another.”

The good news? The articles in the Copyright Directive aren’t laws yet. As the EFF explains, it’s still possible that some majority of EU member states will fail to approve the directive when they vote later this month. And activists are working to help make that happen.

But even if the directive passes muster with the European Council, it will still require a lot of time for them to become laws because each will need to be transposed into every member state’s national laws. And they have until 2021 to do so. The problem is that some countries that enthusiastically support the directive will try to push the changes through more quickly.

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Comments (42)

42 responses to “Controversial New EU Copyright Rules Pass Another Legal Hurdle”

  1. bart

    Paul, as a content creator, what is your view on Article 11?

    • wright_is

      In reply to Bart:

      As he creates all of his own content, it shouldn't cause any changes for him, at least not in terms of publishing. If people are re-posting his premium content, for example, on YouTube, he would then have redress, in Europe.

      It will be interesting to hear what he thinks.

      The bill aims to put a stop to people uploading copyrighted works to YouTube, for example, such as music videos, TV series and films, where they do not own the rights - which is something Google should be doing already, but they just grab advertising revenue off the uploads until the copyright owner lodges a complaint and the video is pulled.

      That said, the link tax is a bit silly, and Google have already adjusted Google News, it only shows the headline, not even a snippet. But it is up to the publishing site to decide, whether they want to pursue payment or not for the snippets.

      • lvthunder

        In reply to wright_is:

        The key question is how is Google (or any other company) supposed to know if something is copyrighted or not.

        • karlinhigh

          In reply to lvthunder:

          They'll probably have to assume everything's copyrighted? Unless it comes from a source that's not copyrighted by statute, like works produced by USA Gov't.

        • wright_is

          In reply to lvthunder:

          They've had 15 years of breaking copyright laws and hiding behind safe harbor to work out how to get this right. They knew they were in the wrong, when they released the service, but decided it was cheaper to live off the income of showing adverts on violating videos whilst paying lawyers to keep copyright holders at bay...

          If they had done what was legally and morally correct from the beginning, we wouldn't have this mess now.

          They can look at fingerprints of known infringing video, they can have the uploaders sign some form of electronic affidavit declaring that the upload is legal and they assume responsibility - of course, you'd have to have a registered name and address.

          Certain entities can get verified accounts, such a podcasters, TV stations, moview studioes, music labels and websites and news services, which agree to only upload their own material.

          • christian.hvid

            In reply to wright_is:

            To an extent, this mess is also the fault of the copyright holders, who spent fifteen years harassing private citizens who happened to download some MP3's over LimeWire, instead of focusing their efforts on those who turn copyright infringement into billions in profit.

            Yes, I know that YouTube and others have been shielded by the DMCA and similar laws, but by relentlessly going after teenagers and grandmas who couldn't defend themselves, the media corporations lost the moral battle over copyright. This is why internet activists so fiercely oppose Article 13, sincerely believing that theyr'e fighting for freedom of expression while they're really just protecting Google's bottom line.

          • lvthunder

            In reply to wright_is:

            I'm guessing if you look in the YouTube terms of service it probably already says that.

            My contention is that any user generated uploaded content is going to hit someone's copyrights at least some of the time. I mean how does Paul know I didn't copy and paste this comment from someone's else's copyrighted comment on another site.

            • christian.hvid

              In reply to lvthunder:

              Blogs and discussion forums are actually among those type of sites that are exempt from the provisions of Article 13 (now 17). It seems to me that whole purpose of this legislation is to force Google, Facebook and others to negotiate a blanket license with rights holders. Once they've done that, we can all go back to sleep.

  2. rosyna

    The second, Article 17, is called the upload filter and it makes new content policing requirements of sites like YouTube that allow users to post their own content.

    Thats Article 13, not 17, and was passed by just 5 votes.

  3. nbplopes

    In my option Google should just block Europe from using their search engine. Of course MS would not be willing to participate in such measure ...

    Juts wonder how that would turn out for European businesses.

    Having said this, there should be a way for businesses and authors to flag that they do not want to be indexed by search ... ops, actually there is but somehow Google ignores it.

  4. jules_wombat

    The EU is right. Protecting the rights of the creators and artists who create content, not freeloading Google, making money. The US needs to listen and take authority from EU leading on these rights.

  5. skane2600

    As with any broad law, many people would like some applications of it and hate others.

  6. hrlngrv

    I already visit several EU-based news sites themselves, not being able to rely on Google News or the like is NBD.

    TBH, I can live with news reverting to a paid service, with sites offering only a handful of free articles a day. OTOH, it'd be nice to be able to buy individual articles a la carte rather than have to pay monthly subscriptions.

  7. bob_shutts

    This directive is very vague. It will lead to endless litigation. As usual, the lawyers will be the winners.

  8. waethorn

    Remind me what good the EU/EC has done lately? Or ever.

  9. gvan

    This is just a small part of the larger Agenda 21 plan.