On 13 February, 2019, the EU institutions finally reached an agreement on the proposed revision of Europe’s copyright rules.  The agreed Directive aims to make copyright laws applicable to the era we are living in where live streaming services, video-on-demand platforms, news aggregators and user uploaded-content platforms have become the main gateways to access creative works and press articles. The agreement is to be confirmed by the European Parliament and the Council of the EU in the coming weeks. 

It can be said that it took a long time before this agreement was reached by the EU institutions; this was due to significant opposition to the Commission’s original proposals from technology companies who argued that the proposal in Article 13 mandating online platforms to filter uploads for copyrighted content would infringe on users’ freedom of expression.  In particular, YouTube strongly objected to the proposed change, with the firm’s CEO taking to social media to express her views and disapproval of Article 13. 

In addition to Article 13, the proposals in Article 11 also proved to be a controversial sticking point in negotiations. The proposal was described by some as a “link tax”, as it makes publishers and aggregate sites liable for copyright when linking to a third party’s article. This would mean that Google would need to pay to list snippets of news stories and other websites on its news search engine. 

Following the conclusion of negotiations between the three institutions, it was announced that Article 11 had been retained in the final version of the text. As a compromise, the provision contains a carve-out stating that it will not apply to hyperlinking or the re-use of “single words or very short extracts”. 

Similarly, compromise was reached with respect to Article 13, which now imposes weaker obligations upon platforms than those originally proposed by the Commission. Instead of being required to take technical steps to prevent copyright infringement, platforms will have to conclude licensing agreements with rightsholders for the use of their works. If no such licensing agreements are in place, platforms will have to (i) use their best efforts to obtain authorisation from rightsholders; (ii) use their best efforts to ensure the unavailability of unauthorised content which has been identified by rightsholders; and (iii) act expeditiously to remove any unauthorised content after being notified and use their best efforts to prevent future uploads. Some have argued that in practice, platforms will still have to put upload filters in operation in order to comply with the conditions set out in Article 13. 

The new rules will increase rights holders’ ability to ensure they are remunerated for the use of their works featured on the internet platforms.  At the same time, the uploading of protected works for purposes of quotation, criticism, review or parody have been protected while ensuring that Gifs and memes will continue to be available and shareable on online platforms.  

Enactment of Copyright Rules

Once confirmed and published on the Official Journal of the EU, the Member States will have two years to implement the new rules into their national law.

 If a Brexit agreement is reached between the EU and the UK, the Copyright Rules will also be implemented in the UK.