The European Union Copyright Directive is a set of laws that member states of the EU must implement in order to harmonize copyright law across the EU. The directive was originally adopted in 2001, and has been amended several times since then. The most recent amendment, known as the Copyright in the Digital Single Market Directive, was adopted in 2019. The directive sets out various rights that copyright holders have, including the right to reproduce their work, the right to make it available to the public, and the right to authorize or prohibit any form of exploitation of their work. It also establishes a “fair use” exception for certain uses of copyrighted material, such as criticism or parody. The directive has been controversial since its inception, with some arguing that it goes too far in protecting copyright holders’ rights, and others arguing that it doesn’t go far enough. The most recent amendment has only further stoked these debates. Critics of the directive argue that it will stifle creativity and innovation by making it harder for people to use existing copyrighted material in new ways. They also argue that it will harm small businesses and individual creators who can’t afford to pay for licenses to use copyrighted material. Supporters of the directive argue that it strikes a fair balance between protecting copyright holders’ rights and allowing for creativity and innovation. They also point out that many of the provisions in the directive are based on existing international treaties on copyright law.
The EU Copyright Directive & Its Discontents
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The highly controversial EU Copyright Directive (Directive [EU] 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC) was pushed through the European Parliament despite vehement opposition from the tech industry and its users.
The Directive gave Member States until June 2021 to enact new national laws reflecting its provisions. A number of criticisms have been levelled at the Copyright Directive. These include the criticisms that it will:
- severely undermine the free expression of Internet users who risk having user-generated content they attempt to post blocked from publication by companies wary of running afoul of new copyright laws;
- Add to the regulatory confusion on what is lawful and what is not. The Directive is not itself law but a framework that forms the basis on which Member States need to draft their own laws;
- force online services to install automated copyright filters that will over-block legitimate material, including memes and remixes by virtue of the much-maligned Article 13. The SaveYourInternet campaign has claimed that Article 13 “would turn the whole internet into a copyright police” and “make platforms responsible for enforcing copyright instead of rights-holders”;
- threaten hyper links through the “link tax” emanating from Article 11, when hyperlinks are an essential tool for news sites to communicate with their readers. Article 11 is designed to protect news publishers by preventing aggregators from using snippets of online content without paying a licensing fee. However, critics say it will force companies like Google to pay for links that it has used for free for years. The move would also make it harder for new entrants to compete with established platforms. The SaveYourInternet campaign has claimed that Article 11 will “destroy the Internet as we know it and lead to a more fragmented, less diverse online world.
Critics have warned that if the legislation goes ahead, it will encourage repressive regimes like China and Russia to demand similar laws in an attempt to control content on their own national versions of Facebook and Google. Moreover, they have claimed that the Directive will not harmonise copyright laws across Europe because it does not provide for harmonisation. It creates loopholes and exceptions that will be exploited by those with vested interests. Critics have in fact elicited the so-called “transport of goods” loophole. By way of example, this would entail importing a CD from France to the UK, and when you play it in your car it’s illegal (with no compensation) because you are “transporting” it across national borders.
On the basis of the “transport of goods” loophole, critics have asserted that the Directive is going to be used as a weapon by big companies to shut down competition: they will use it to scare the little guys who are doing their own thing. In this way, the “big guys” will stifle innovation and free speech – exactly what the Directive claims they are trying to prevent. This, they say, is exactly what has happened in various countries around the world when similar or identical laws were introduced.
The Directive also introduces new restrictions on research and education, and it allows for all kinds of new restrictions on freedom of speech, such as an obligation for Internet service providers to monitor their users’ online activities and remove any illegal content (which they may not even know about).
While the final form that national-level copyright law in the EU will take under the Copyright Directive is still a work in progress in most EU Member States, the obligations of the Copyright Directive will invariably cajole companies into taking far more invasive steps than has ever been the case in the past to endeavour to identify and filter out copyrighted user-generated content. When these companies automate their decision-making process and have to draw the line on errors that such systems may make from time to time, they will inevitably choose to err on the side of caution. The inevitable upshot is that Internet users will experience more obstacles in posting and accessing online content than has ever been the case hitherto.
