The proposal of the Directive of the European Parliament and of the Council regarding copyright in the European digital market was finally approved just last week on 12th September 2018, having been initially rejected in July of this year. As the very name indicates, this new directive shall regulate the use of copyright in internet, establishing a system of licences and the filtration of contents which should respect digital publication platforms.
The controversy regarding the modification of the directive mainly focuses on articles 11 and 13.
The previous proposal of article 11 of the directive established the obligation of the member States to recognise the rights of news and press publishers to authorise or prohibit the direct or indirect digital reproduction of its works or publications. Likewise, it offered protection for 20 years to said rights, which would start to run as from the 1st of January of the year following the publication of the contents.
The amendment however introduces the following modifications:
(1) Member States must ensure that press publishers and authors receive “fair” and “proportionate” remuneration from the “providers of information society services”. This new requirement implies that the holders of the copyright (including both publishers as well as the effective authors of content) must receive “royalties” from contents compilation platforms and news aggregators.
(2) The duration of the protection is 5 years, instead of 20 years.
(3) The rights contemplated in this article shall not be applied with retroactive effect.
On the other hand, article 13 has brought about even more controversy given that it directly affects large companies such as YouTube, Facebook, or Twitter. The modification provides for the following:
(4) Online content exchange service providers who “store … large quantities of works and services loaded by its users” must sign fair and appropriate licencing contracts with the holders of the rights.
(5) The services providers must establish systems for claims and appeals which are “agile and efficient”.
This point fully affects the major platforms for broadcasting videos and other content that may be protected, given that it is not the platforms themselves, but the users who usually make publications and the content filter systems are scant and are usually applied after publication.
Finally, it is worth mentioning that not all information dissemination and news aggregator platforms shall be affected, as small platforms and micro-enterprises shall not be affected. Furthermore, encyclopaedias with free content, such as Wikipedia, shall not be affected, neither shall material protected for teaching, provided that it is always correctly referenced, to include in the references not only the name of the publisher or the company which initially published the information, but also the name of the author or authors who effectively created the contents, if this information is relatively easy to obtain.
Pedro Blanco
Vilá Abogados
For more information, please contact:
21st of September 2018
