Nearly three years after the announcement that the EU would be modernizing its copyright regulations and a year after the dreaded Articles 11 and 13 were initially passed, a revised version of the Directive on Copyright in the Digital Single Market passed yesterday with a vote of 348 to 274.
The dreaded Articles 11 (the “link tax”) and 13 (requirements to license or scan for copyright-infringing materials) were rebranded as Articles 15 and 17, respectively. You can read the directive yourself, but here are the relevant portions of the articles formerly known as 11 and 13.
For Article 15 (11):
Member States shall provide publishers of press publications established in a Member State with the rights provided for in [previous EU regulations] for the online use of their press publications by information society service providers…
The protection granted under the first subparagraph shall not apply to acts of hyperlinking.
The rights provided for in the first subparagraph shall not apply in respect of the use of individual words or very short extracts of a press publication…
Member States shall provide that authors of works incorporated in a press publication receive an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers.
Thankfully, the scope of the “link tax” has been pared back, but such revenue sharing would still impose a large burden on sites large and small looking to use protected content.
For Article 17 (13):
An online content-sharing service provider shall…obtain an authorisation from the rightholders…for instance by concluding a licensing agreement, in order to communicate to the public or make available to the public works or other subject matter…
If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have [taken steps to either acquire the rights or done their best to prevent uploading of infringing content]
While the article does not require all sites adopt a ContentID-style screening system, it does require member states to implement regulations that:
online content-sharing service providers provide rightholders, at their request, with adequate information on the functioning of their practices [and] put in place an effective and expeditious complaint and redress mechanism that is available to users of their services
Now, it is up to individual EU member states to implement the regulations over the next two years, which creates an opportunity for the directive to be stalled or for implementation to turn into such a disaster (as the negotiations were), that the EU votes again to scrap the entire project.
The possibility for an e-Brexit-style dumpster fire for the Directive is likely the best way for this regulation to be undone, but for now it’s in the hands of member states to implement one of the most regressive online regulations in history.
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