More clarity on “normal use” in EU design law
The Court of Justice of the European Union has offered some clarity on what may be deemed ‘normal use’.
The EU Parliament has now voted in favour of controversial legislation intended to modernise EU copyright law which, as we reported here, had been side-lined in July.
The proposed Directive on Copyright in the Digital Single Market 2016/0280(COD) – also known as the EU Copyright Directive – is part of a bundle of proposed directives, intended to harmonise aspects of the European Union copyright law and support the Digital Single Market. The EU Copyright Directive contains two provisions which have proved to be particularly controversial – Articles 11 and 13. On September 12, a revised version of the directive including amended versions of Articles 11 and 13 was approved by MEPs, with the final vote being 438 in favour and 226 against.
Article 11 extends the 2001 Copyright Directive to grant publishers direct copyright over digital use of their press publications by “information society service providers”. Under current EU law, publishers rely on authors assigning copyright to them and must prove rights ownership for each individual work.
Article 11 is intended to protect newspapers and other outlets from having their material exploited online without payment, by requiring anyone using snippets of journalistic online content to obtain a license from the publisher. However, it has been branded a “link tax” by opponents who fear it could lead to problems with sentence fragments being used to link to other news outlets. Addressing at least some of these concerns, MEPs have agreed a version which introduces reassurances that private and non-commercial use of press publications by individual users (e.g. bloggers) will not be prevented and that the provision will not extend to “mere hyperlinks which are accompanied by individual words”.
Despite the compromises made, critics are still worried about the impact Article 11 may have. However, following the introduction of a similar provision in Germany in 2013, it appears that in practice many publishers have chosen not to make use of the new protection.
Article 13 places a greater responsibility on websites to enforce copyright laws, and would mean that internet platforms hosting “large amounts” of user-uploaded content must either enter into licensing agreements with rights holders or cooperate in good faith in order to ensure that unauthorised works are not available on their services. The most common way to do this is by using an AI copyright filter software system.
Article 13 is intended to strengthen the music industry in negotiations with content providers. The move is supported by a number of high profile artists who were among 1,300 musicians who urged politicians adopt Article 13 to prevent users illegally uploading their music. Since the previous vote, Article 13 has been amended to remove any explicit references to filtering technologies and to narrow the category of ‘online content sharing service provider’ to which the provision applies, with the intention of limiting its effect to large content sharing services such as YouTube. Nevertheless, there are concerns that the requirement for service providers to cooperate so that infringing works uploaded by users are not available on their services may in practice amount to a requirement to filter content and would represent an excessive restriction on free speech. There are doubts about the ability of AI filters to accurately separate out copyright-protected material from legitimate content, potentially leading to perfectly legal content be censored. There are also concerns that the high cost of developing filter software will inhibit new providers from entering the market.
One area that is causing significant debate is the impact Article 13 may have in relation to user-generated reproduction of works for creative and expressive uses, such as memes. Such works reproduce the copyrighted work of a third party but do not infringe that copyright as content used for the purpose of caricature, parody or pastiche is exempt from copyright infringement. However, it seems unlikely that AI filters could effectively make this distinction. Prior to the vote, the European Policy for Intellectual Property (a non-profit organisation of researchers) called for exceptions for such user-generated content to be included in the Directive. This call was rejected by the European Parliament, though they have issued a statement which indicated that memes and derivative fan works are “absolutely not in danger”.
This is not the end of the story. The European Parliament must still vote on the final text before asking EU member states to implement the directive. It is expected that the final vote will take place in January 2019 but if it does not occur before the UK leaves the EU on the March 29 2019, we will have to see whether and to what extent these provisions are introduced into UK law.
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