In the summer of 2018, the European Parliament voted in favor of updating the European Copyright Directive. Previously known as the Directive on Copyright in the Digital Single Market, the EU Copyright Directive comprises sweeping legislation regarding copyright laws for online content. The European Parliament updates in September 2018 called for an overhaul on content filters and news aggregation sites. The most controversial components of the EU Copyright Directive include Articles 15 and 17 (previously 11 and 13).

Article 15 (previously 11) is a proposal to allow news websites to decide which websites could link to them and how much they would be charged. Article 15 is otherwise known as a link tax. According to this proposal, taxes can be imposed on news aggregators such as Google, Yahoo, and Apple when they share snippets from publishers.

Article 17 (previously 13) is a proposal for public communication platforms to deploy copyright filters. This measure was deemed necessary to block users from copyright infringement. Article 17 blocks any and all online communications containing copyrighted material. Plus, the onus falls on websites to ensure the authenticity of the content that is generated. A big part of the problem – according to opponents of Article 17 – is the burden it places on websites. Further restrictions vis-a-vis content filters also come into play.

Tremendous Blowback Against German Proposals

Germany’s decision to promote then Article 11 and Article 13 appears to unfairly discriminate against SMEs (Small and Medium Enterprises) in Europe and favor the tech giants from the US. The last time the European Directive on copyright was updated was in 2001. Now, nearly two decades later, Axel Voss, a German MEP and new rapporteur, has renewed calls to implement sweeping new measures on how information can be shared, transferred, uploaded and used. After Voss called for these changes, more than 1 million Europeans promptly wrote to their members of parliament to demand a vote on each clause in the EU Copyright Directive.

The vote was aimed at amending Articles 15 and 17. Such is the opposition to the sweeping measures that upwards of 4 million Europeans have already voted against it. While Voss and supporters have made minor changes to Article 15, it remains largely intact. Article 17 requires that companies spend huge sums of money to invest in filters for copyright purposes. This alone discriminates against small companies with limited financial means.

These proposals have industry executives up in arms, particularly those in the entertainment industry. MEPs from many European countries including Croatia, Portugal, Slovenia, Italy, Netherlands, Finland, Poland, Sweden, Luxembourg, Germany and Belgium refused to allow the passage of Articles 15 and 17. In the volatile political arena, it comes as no surprise that Germany has reversed course backed the legislation. German legislators argue that the measures protect small business, while they ostensibly do the opposite.

Several provisions are in place to prevent undue burdens being imposed on small businesses, notably:

  • SMEs earning less than €10 million annually, or those which have been in business for three years, are exempt from setting up copyright filters.
  • Companies in business for more than three years are legally required to comply with the EU Copyright Directive.
  • A notice and staydown filter is mandatory once a company earns its 5,000,000th Euro.

How did the legislation get to this point?

By January 2019, EU member nations hit an impasse on the EU Copyright Directive. There was fierce blowback against this legislation from individuals and businesses, advocates and other stakeholders. This led to proposals being temporarily shelved. While EU members could not come to consensus on the matter, the EU Copyright Directive was recently given new life by Germany and France.

Oddly enough, many people thought that Article 17 would quash one of the internet’s most popular communication channels – memes. It was believed that the entire meme culture which is universally shared online would be hindered by the restrictive components of the EU Copyright Directive. Other concerns related to user-generated multimedia content which requires sharing and the free flow of information across websites.

How will updated copyright legislation impact online communication?

Legislators in Germany and France are working to fast-track the passage of Article 15 and Article 17, which many believe will have a catastrophic effect on internet activity in the EU. Compliance with each of these articles is problematic on many practical levels.

For example, Article 15 mandates that any aggregator which reproduces more than single words or very short extracts of content is required to have a license. There is no wiggle room whatsoever on this point. Opponents of this legislation believe that this is disingenuous, particularly to SMEs, nonprofits and individual aggregators of content.

More disturbing is the impact that Article 17 will have on free speech. The fact that licenses will be required for all user-generated content on commercial websites is particularly alarming. If any content is currently copyrighted, commercial websites must obtain a license to display or communicate that content. More importantly, all websites must conduct due diligence to ensure that all uploaded content is original, or at least obtain the necessary license to display copyrighted material.  This requires the use of content upload filters. Opponents of Article 17 believe that these restrictions severely limit information dissemination and place an unfair burden on websites.

Several concerns currently making their rounds include the following:

  • Mash-ups and memes will be adversely affected by Article 15 and Article 17
  • YouTube user channels and content that is posted on the world's biggest video sharing platform may come under fire
  • Smaller platforms will be disproportionately affected

It's important to separate fact from fiction on each of these points. Mash-ups and memes will remain covered by copyright exceptions. Non-commercial sharing of content will not be affected. Popular memes will be licensed accordingly. As for YouTube, this social media giant currently uses Content ID which has paid rights holders billions of euros for use of their content.

YouTube creators will still own the content they create, but dissemination of other people's content will require platforms (YouTube, Facebook etc.) to use licenses. The final point, smaller platforms is a topic that requires further discussion with MEPs. The last thing people want is for the juggernauts of the internet to have their filters imposed on what everyone in the EU can upload.

Is there an exit strategy to repeal the updated EU copyright directive?

Many believe under Article 17, free speech will be the first to go. As websites seek to prevent punitive measures being leveled against them through copyright violations, users will be limited in terms of the content they have access to. Fortunately, there is some light at the end of the tunnel, laws can be repealed.

Public discourse in EU processes is typically lackluster on many issues. However, the European Union Copyright Directive has generated unbelievable interest at the grassroots level. It has attracted attention from lobbyists, stakeholders, business owners and captains of industry. With EU parliamentary elections coming in May it should be an issue politicians will have to address.

The EU currently operates under the guise of a union of European countries, but recent Grexit and Brexit realities have severely fractured the seemingly impregnable foundations of the bloc. The EU will have to work hard for the public good and not be seen advocating for the tech titans of Silicon Valley with this type of legislation.

In the meantime, those concerned with the new regulations should consider using a VPN to connect to the internet outside of the EU.