Q and A on the draft digital copyright directive

It outlines the basic position taken by the European Parliament and deals with some of the criticisms raised most regularly regarding Parliament’s position. At time of publication, the negotiations are still ongoing and therefore various elements could be subject to modification. What is the Copyright Directive about? The proposed “Directive on copyright in the Digital Single Market” seeks to ensure that artists (especially small ones, for example musicians), and news publishers and journalists benefit from the online world and the internet as they do from the offline world. Currently, due to outdated copyright rules, online platforms and news aggregators are reaping all the rewards while artists, news publishers and journalists see their work circulate freely, at best receiving very little remuneration for it. This makes it very difficult for artists and media professionals to earn a decent living. It is important to point out that the draft directive does not create any new rights for artists and journalists. It merely ensures that their existing rights are better enforced. Nor does the draft directive create new obligations for online platforms or news aggregators. It merely ensures that existing obligations are better respected. What is currently legal and permitted to share will remain legal and permitted to share. In short:

• The draft directive intends to oblige giant internet platforms and news aggregators (like YouTube or GoogleNews) to pay content creators (artists/musicians/actors and journalists) what they truly owe them;
• No new rights or obligations are being created. What is currently legal and permitted to share will remain legal and permitted to share.

How will the Directive affect ordinary users? The draft directive does not target the ordinary user. By contrast, the draft directive will impact large online platforms and news aggregators like Google’s YouTube, Google News or Facebook, making it essential for them to correctly remunerate artists and journalists whose work they monetise. Large online platforms and news aggregators will have more reason than currently is the case to strike fair remuneration (licensing) agreements with artists and media houses who would have identified themselves beforehand as the owners of a piece of work. A platform or news aggregator will be further incentivised to strike such agreements because, in the absence of them, it would be directly liable if it hosts a piece of work with an unpaid licence fee. The current legislation offers more wiggle room for platforms to absolve themselves from this liability. The expectation is that the draft directive will push the online platforms/news aggregators to finally roll out a policy to fairly remunerate all those from whose work they make their money. Will the directive affect internet freedom or lead to internet censorship? Freedom on the internet, as in the real world, will continue to exist as long as the exercise of this freedom does not restrict the rights of others, or is illegal. This means that a user will be able to continue uploading content to internet platforms and that these platforms/news aggregators will be able to continue hosting such uploads, as long as the platforms respect the creators’ right to fair remuneration. Currently, the online platforms/news aggregators remunerate creators on a voluntary basis and only to a very limited degree. The draft directive will not be the source of censorship. By increasing legal liability, the draft directive will increase pressure on internet platforms/news aggregators to conclude fair remuneration deals with the creators of work through which the platforms make money. This is not censorship. Is the directive creating automatic filters? No. The draft directive sets a goal to be achieved – An online platform/news aggregator must not earn money from material created by people without compensating them. Therefore, a platform/news aggregator is legally liable if there is content on its site for which it has not properly paid the creator. This means that those whose work is used illegally can sue the platform/news aggregator. The draft directive however does not specify or list what tools, human resources or infrastructure may be needed to prevent unremunerated material appearing on the site. There is therefore no requirement for upload filters. However, if large platforms/news aggregators do not come up with any innovative solutions, they may end up opting for filters. Such filters are already used by the big companies! The criticism that these sometimes filter out legitimate content may at times be valid. However, this criticism should be directed towards the platforms/news aggregators designing and implementing them, not to the legislator who is setting out a goal to be achieved – a company must pay for material it uses to make a profit. A goal which, in the real world, is uncontested and enforced. Does this directive affect memes? This draft directive does not regulate memes so cannot do anything in favour or against them. A meme falls under the generic rights of ‘citation/quotation’ and ‘parody’. The citation and parody rights are not covered by the draft directive. The draft directive deals with the liability of platforms for works protected by copyright. National law regulates whether or not a piece of work is protected by the freedom of citation/quotation or parody, not this draft directive. It is true that some national systems allow less scope to invoke citation/quotation and parody rights, but this is a criticism to put to the national level. Why have there been numerous recriminations against the directive? The draft directive has been the subject of intense campaigning. Indeed, some statistics inside the European Parliament show that MEPs have rarely or even never been subject to a similar degree of lobbying before (such as telephone calls, emails etc.). The companies to be most affected by the directive have multi-billion dollar yearly revenues (for example Google’s revenue for 2017 was $110 billion and Facebook’s was $40.7 billion). Such wide-ranging campaigning generally does lead to impressive claims snowballing; there are claims that the draft directive risks “breaking the internet”, or “killing the internet”. Since the draft directive does not confer any new rights on creators, nor impose new obligations on internet platforms/news aggregators, such claims seem excessive. There are numerous precedents of lobbying campaigns predicting catastrophic outcomes, which have never come true. For example, telecom companies claimed phone bills would explode as a result of caps on roaming fees; the tobacco and restaurant lobbies claimed people would stop going to restaurants and bars as a result of the smoking ban in bars and restaurants; banks said they would have to stop lending to businesses and people, due to tougher laws on how they operated and the duty-free lobby even claimed that airports would close down as a result of the end of duty-free shopping in the single market. None of this happened. Is the main purpose of the directive to protect smaller content creators? Although the draft directive is aimed at helping all creators have a stronger bargaining position on how their work is used by online platforms, the main beneficiaries will be the smaller players. Larger players often have law firms to safeguard their rights, whereas smaller ones currently have little means to support them. There are claims that Article 13 could lead to work being taken down when the rights holder is unknown. The example of the hit Despacito was given… The aim of the draft Article 13 is to give artists a stronger position in invoking their rights for fair compensation when their work is used and distributed online by others. An artist will typically have notified platforms like You Tube that a specific work is theirs. Works for which the rights holder is unknown are therefore unlikely to engage a platform’s liability if they are uploaded there. It has been claimed that the directive will have a profoundly negative impact on the livelihood of hundreds of thousands of people… The contrary is more likely to be the case: the draft directive’s intention is to help provide numerous people with the livelihood they deserve for their work, and which they require to continue creating. The draft directive intends to ensure that more money goes to artists and journalists rather than Google’s shareholders, a transfer of resources that is always beneficial to jobs. Is Article 11 going to create a tax – to be more precise a tax payable when a news article is shared? No. The EP wants to ensure that some money goes from multi-billion dollar news aggregators to the journalist who has done all the hard work writing up an article. These articles, it should be stressed, often dig up the truth and contribute enormously to upholding a democratic system. This cannot be considered a tax.