Last week, the European Union inched closer to finalising new rules governing the use of copyright material on the internet.
Set out in the Directive on Copyright in the Digital Single Market, the rules set out to curb the power of big tech firms by levelling the playing field between content creators and those who exploit content online.
The Directive has been highly controversial.
It has been described as an “end to freeloading” by supporters, and a “censorship plan” by opponents.
It has also sparked fierce lobbying, public demonstrations, open letters from Google and YouTube, and even temporary shutdowns of Wikipedia.
The most controversial part is Article 13 (renumbered as Article 17 in the final version). Under this rule, online platforms are legally responsible for the copyright infringement of its users. That is, unless the platform enters into licence agreements with rights holders, or takes steps to ensure that infringing materials like pirated music or films are not uploaded.
Platforms are not required to monitor every piece of shared content, but if a film company or record label specifically notifies them about original copyright works which cannot be infringed on their site, they must do their best to prevent the illegitimate sharing of that content.
Effectively, Article 13 shifts the burden of policing the internet from content creators to platforms.
The Directive contains little guidance on what steps will be required to achieve this. However, it states that any response should be proportionate, taking into account the audience and size of the service.
Basically, the bigger the platform, the more it will have to do.
An earlier draft of the Directive said that platforms could use “content recognition technologies”, but that was ultimately deleted, without being replaced. Such technologies are controversial, because they risk blocking copyright works used for legitimate (and non-infringing) purposes, such as review or parody – with significant implications for freedom of speech and open internet.
The Directive also states that it should not prevent the sharing of non-infringing works, but it fails to clarify how online platforms can achieve this important balance.
Article 13 applies to any online platform that allows its users to share large amounts of content in order to make a profit. So it will bite on YouTube, music-sharing, and video game live-streaming platforms, as well as many others.
It does not apply to all types of online services (for example, online encyclopaedias like Wikipedia are excluded), while more limited obligations apply to startups.
The Directive contains a worrying lack of detail. It remains difficult to assess exactly which platforms will be caught by it, and what they will be required to do.
The Directive envisages that guidance will be issued by EU institutions following stakeholder dialogue. However, legal and commercial uncertainty will continue until the details are fleshed out.
This Directive is not yet law. It still needs to be approved by the Council of the European Union before it comes into force. EU countries will then have two years to implement it, meaning it is unlikely to apply before May 2021.
Tech companies will hope that greater clarity emerges on its scope before then.