In July, members of the European Parliament rejected proposed changes to European Union copyright law that would have placed more responsibility on websites to check for copyright infringements and forced internet platforms to pay for linking to news.
Attempts to reform copyright law across the 28-member bloc and bring it in line with the digital age have pitched internet giants like Google in a fierce battle against high-profile musicians including Sir Paul McCartney.
Some content creators backed the change, arguing that websites had exploited their work, whereas social media companies like Twitter and Facebook claimed the rules would stifle internet freedom and creativity.
“It’s clear in my opinion that the underlying basis of copyright law needs to be revisited by all parties
Trade Mark Attorney, Gleeson McGrath Baldwin; Chair, IBA Licensing Intellectual Property and International Treaties Subcommittee
The proposed EU Directive on Copyright in the Digital Single Market was rejected by a margin of 318-278 in the European Parliament. The European Commission will now look at how it can tweak the proposed legislation.
The Directive contained two highly-contested parts. The first, Article 11, was intended to protect newspapers and other media outlets from internet giants like Google and Facebook using their material without payment. The Article triggered fears that simply referring to a news story as a weblink would incur a charge, even if the content wasn’t included, leading critics of the proposal to refer to it as a ‘link tax’.
Article 13 meanwhile would have put greater responsibility on websites to enforce copyright laws. Any online platform that allowed users to post text, images, sounds or code would need a way to assess and filter content to ensure that those posting the material either owned or had a licence to use it – all of which would take time, cost money and be likely to lead to a reduction in content, users and advertising revenue.
There were also concerns that these copyright filters could effectively ban memes and remixes which often use copyrighted material.
Cristina Arenas, associate IP lawyer at Spanish law firm DA Lawyers, believes that Articles 11 and 13 of the Directive are ‘rather controverted’. She believes that Article 13 is ‘especially complex’ and would imply setting a ‘preventive protection’ of the copyright, thereby obliging service providers to establish filter systems and algorithms to prevent the availability of content published on the internet because it may infringe intellectual property rights.
The main obstacle, says Arenas, is that ‘the obligation for service providers to set a general filter system implies monitoring all the communications of the clients of such service providers, which is not allowed by Article 15.1 of the EU Directive on electronic commerce.’
‘This is not a new issue,’ says Luis Herranz, a junior IP lawyer at the same firm. ‘The Court of Justice of the European Union (CJEU) has stated that the protection of intellectual property rights guaranteed by the Charter of Fundamental Rights of the European Union is not absolute, and there must be a balance between its protection and the one foreseen for other fundamental rights, such as the rights to freedom to conduct a business, protection of personal data, and freedom of expression and information,’ he says.
Eileen O’Gorman, European Trade Mark Attorney at Irish law firm Gleeson McGrath Baldwin and Chair of the IBA Licensing Intellectual Property and International Treaties Subcommittee, believes that copyright legislation is very much in need of an overhaul to make it fit for purpose in a digital economy. ‘It’s clear in my opinion that the underlying basis of copyright law needs to be revisited by all parties and understood,’ she says.
According to O’Gorman, if the legislation in its current suggested form had passed the plenary vote then it would very much have boosted the position of the creative artist and the print media and ‘sent out a message that copyright reform was serious about protecting the cultural sector in the digital economy’.
The current exemptions contained in the E-Commerce Directive (now over 17 years old) do not protect the sustainability of the creative sector and have resulted in a widening value gap, says O’Gorman. ‘Obligations to pay equitable remuneration to rights holders, whether with regards to user-generated content or simply using a copyright work, must be backed up by preventive measures, enforcement and liability.’
O’Gorman believes the Directive needs to strike a balance between digital progress and access to the internet with compensating those who create copyright material. If the creators are not being adequately compensated, then the creative and cultural industries are no longer sustainable and are potentially endangered, she argues.
One way to address the problem may be to adopt a licensing system. ‘A licensing system has traditionally worked in the broadcast sector and should therefore be easily adaptable to provide for equitable remuneration and protection for the copyright holder while not unduly fettering the use and dissemination of copyright material,’ says O’Gorman.
Orit Gonen, partner at Israeli law firm Gilat, Bareket & Co, and Vice-Chair of the IBA Copyright and Entertainment Law Subcommittee, says that ‘the latest controversial amendments to the EU’s directive on copyrights may serve as yet another example of conflicts found in intellectual property rights protection legislation. Whereas the public seeks to encourage sharing original works and using them as stimulants of future creations, legislators attempt to find proper measures that allow creators and copyright owners to enforce their rights, means that might potentially violate basic human rights.’
The EU is not the only jurisdiction considering reform of copyright legislation. Israel’s legislature, the Knesset, is also currently considering a bill that would amend the country’s Copyright Law of 2007. According to Gonen, while emphasising the complexity in determining the right balance between all the various interests, the bill strengthens copyright owners’ rights and puts forth various measures providing more extensive protection to creators and copyright owners. Such measures include filing for injunctions against third parties restricting access to websites whose main content constitutes copyright infringement; creating special processes for revealing the identities of offenders in electronic communications networks; and adapting criminal aspects of the Copyright Law for the technological era.
The bill is currently under committee review; Gonen says that ‘it is yet to be seen how the Knesset will ultimately balance the various rights and freedoms involved in protecting intellectual property rights in the new bill.’