In September 2016, the European Commission, which is the executive cabinet for the European Union, issued a Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market . On September 12, 2018, after protests by internet activists and votes by the EC’s Legal Affairs Committee and members of the European Parliament, the full European Parliament voted to adopt the proposed directive with minor revisions.
The current draft of Article 13 of the proposed directive would introduce an obligation for “online content sharing service providers” that host and provide access to user-generated content either to negotiate licenses with content owners to allow use of the UGC or use measures that include “effective content recognition technologies,” known colloquially as upload filters that are “appropriate and proportionate.” The obligation would not apply to (1) small companies that employ fewer than 50 people or have an annual revenue of 10 million euros or less; (2) non-commercial services such as online encyclopedias like Wikipedia; (3) educational and scientific repositories that upload content with the permission of copyright owners, cloud service providers for individuals that do not give the public access to the content; (4) open source software development platforms like GitHub; and (5) online marketplaces that mainly engage in online retail of physical goods.
The battle over Article 13 is being waged on one side by authors, artists and other copyright owners who want to increase their ability to control and receive remuneration for the use of their content by forcing online service providers to obtain licenses for the content or to use upload filters. Content owners argue that Article 13 would restore the balance between Europe’s creative industries and U.S. technology giants like Facebook and Google, which owns YouTube.
On the other side, online service providers want to secure their protection under the safe harbor provisions of the EU Directive on Electronic Commerce, while avoiding potentially onerous obligations to obtain licenses for or to filter UGC. Given the transaction costs of negotiating and purchasing licenses for UGC, online service providers may opt to implement upload filters; however, some existing filtering technologies either over-block content that is lawful under doctrines such as fair use, satire and parody, under-block content that infringes works identified by content owners, or both. Internet activists have decried the imposition of censorship by upload filters on platforms and services that rely on UGC, including blogging, discussion and social media services that allow users to share content such as memes, parodies and livestreams.
A key part of the debate rests on the apparent conflict between Article 13 and the safe harbor provisions of the Directive on Electronic Commerce. Article 14 of the directive, similar to one of the safe harbor provisions of the U.S. Digital Millennium Copyright Act, offers online service providers protection from liability for copyright infringement in UGC if the service provider lacks actual knowledge of the infringement and awareness of facts or circumstances that make the infringement apparent, or expeditiously removes or disables access to the content upon obtaining such knowledge or awareness. Requiring online content sharing service providers to implement upload filters arguably conflicts with Article 15 of the directive, which holds that EU member states may not impose an obligation on service providers either to monitor the content that they transmit or store or to actively seek facts or circumstances indicating infringement.
Article 13 attempts to resolve the problem by stating that online service providers are not eligible for protection under the Directive on Electronic Commerce safe harbors if one of their main purposes is to store, give public access to or stream significant amounts of copyright-protected UGC and to optimize and promote such content for profit, including through display, tagging, curating and sequencing the UGC. Such online service providers, according to the proposed directive, “act in an active way,” and therefore cannot benefit from the safe harbors, presumably because they have actual knowledge of infringement or awareness of facts or circumstances that make infringement apparent.
The fight over Article 13, and the opportunity for content owners and internet activists to lobby European Parliament members will continue at least until next spring. The proposed directive has now entered closed-door trialogue negotiations between the EC, the European Parliament and the European Council, which is primarily composed of the leaders of EU member states, in order to reach agreement on the entire text of the directive. Next spring, the European Parliament will vote on the agreed upon text and may vote on whether or not to pass the proposed directive at all, but defeat of the directive at that stage is unlikely. The various EU member states will then debate and enact their own versions of the legislation.
