4 Takeways from EU Copyright Directive Vote

In September, the European Parliament passed a new draft of the European Union (EU) Copyright Directive legislation championed by content creators and publishers, but decried by tech behemoths. The directive will have to go through more committee discussions and another parliamentary vote before it can become law, but this doesn't mean the polarizing legislation isn't already making in-house counsel nervous.

Attention to the latest draft of the directive has been focused on Articles 11 and 13. Article 11 would give online publishers direct ownership of copyright in their publications. The copyright owners would then be able to ask for payment when their content is shared around the web through services such as Google News and Reddit. Article 13, which has been called the “upload filter,” says that online platforms could be held liable when a user uploads infringing content.

Here are four takeaways for in-house lawyers from the latest iteration of the directive:

1. Country By Country

The new copyright rules are being negotiated on an EU-wide basis, but if the directive passes (as many suspect it might in 2019) it will not be “directly effective” in any EU state, according to Tom Broster, an IP lawyer at UK firm Briffa Legal. Broster wrote in an email that “each member state is allowed to interpret the directive as its sees fit and implement the directive through its own national laws, provided that certain outcomes are achieved.”

2. Winners and Losers

Tech companies have complained a great deal about the directive. And some Internet users and privacy advocates are already bemoaning the death of memes if it goes into place. But who's going to win? Copyright owners will be the largest beneficiaries of the directive, according to Broster. He said he believes that “copyright owners stand to benefit from enhanced protection and enforcement mechanisms, with the standard expected of service providers in policing infringement being higher.”

3. On Balance, Though …

Article 11 of the draft directive may come at a cost to companies, but those large tech companies such as Google and Facebook may also still be able to profit. The revenue generated for larger companies could outweigh the license fees that will need to be paid. “In other words, larger companies still stand to profit from linking to others' publications, just maybe not as much — and individuals stand to profit from receiving royalties from these larger companies. How payment will be ensured, however, is a different matter entirely,” Broster said.

4. New Rights Owners

Ron Moscona, a partner at Dorsey & Whitney in its London office, said in an email that publishers will have their own limited protection periods for five years so they can reap the benefits of dissemination of their publications by third parties online. “The revised text of the directive emphasises in this context that copyright protection will not prevent the free use of hyperlinks that lead to protected content published online,” Moscona wrote. “However, the new rights of publishers may force search engines and other digital players to pay royalties, for example, when published content comes up in search results.”

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Dan M. Clark is the Albany reporter for the New York Law Journal, an ALM sibling of Entertainment Law & Finance. He can be reached at [email protected].