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 UK will not be implementing the EU Copyright Directive after it leaves the EU, MP Chris Skidmore has announced. This decision represents a U-turn in policy for the UK Government which initially supported the directive back in April 2019. However, the directive has attracted criticism from some policy makers, including Prime Minister Boris Johnson, internet companies and large sections of the public.
The aim of the directive is to bring copyright law up to date with the vast consumption of digital media through online content sharing services such as YouTube, Instagram and Facebook.
Under the directive, anyone using snippets of journalistic online content will be required to obtain a license from the publisher and sharing platforms will be obliged to ensure that user uploaded content does not infringe existing copyright. Many in creative industries support the changes as it will help them to ensure digital platforms pay fairly for the content they use and distribute. But critics of the directive have suggested that it may lead to services implementing strict automatic copyright detection algorithms to remove copyright protected works. The danger being that the automatic filters stifle creativity and remove significant amounts of material unnecessarily.
Some also fear that it would further harm creative and digital industries as many viral video clips, stills and animated GIFs could be automatically filtered/blocked even if they only incorporate an insignificantly small part of a protected work. Changes to the directive have made content for the purposes of “quotation, criticism, review, caricature, parody and pastiche” exempt, but it is difficult to see how an automated filter could distinguish between such an exempted use and a genuine copyright infringement.
Furthermore, as the implementation of the directive is down to national governments, some are concerned that individual states will begin to issue heavy handed fines for non-compliance. This could lead to sharing platforms implementing even stricter filtering algorithms that further stifle genuine content.
The announcement that the UK will not implement the directive brings uncertainty to industries that rely on copyright protection, as although there are “no plans” to implement the directive, former Culture Minister Nigel Adams had indicated that the government still supports the aims of the directive. Therefore, UK law could still be brought in line with the directive without full implementation.
If the law remains unchanged or a watered-down version of the directive introduced, the UK could become a more attractive place for smaller sharing platforms and start-ups who cannot afford to implement the content filtering systems that could be required to be compliant with the directive.
Despite the recent announcement, the period for implementing the directive does not end until June 2021, so there is still plenty of time for the UK’s position to change as the final Brexit negotiations and deal unfolds.
If you have any concerns about how Brexit might affect IP related to your business and would like to talk to one of our experts, please get in touch.