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EU copyright reforms approved by MEPs

The European Parliament has formally approved controversial new EU copyright laws.27 Mar 2019

MEPs voted 348 to 247 in favour of the new Copyright Directive, with 36 MEPs abstaining.

The new legislation will only become EU law if representatives of national governments from across the EU also endorse the reforms in a vote at the Council of Ministers. That vote is anticipated in the coming weeks. Each EU country would have two years from the point the new legislation is set in EU law to implement the measures into national law.

Frankfurt-based copyright law expert Nils Rauer of Pinsent Masons, the law firm behind Out-Law.com, said: "When the European Commission published its proposals for a new Copyright Directive in 2016 it triggered significant debate over how the EU's copyright framework should be modernised to match the needs of the modern digital world. This is no easy task, particular given the need to balance, as far is possible, the interests of the diverse group of stakeholders who will be impacted, including, authors, journalists, photographers, publishers, internet service providers, technology companies and broadcasters, as well as internet users themselves. This text is the European Parliament's attempt to strike that balance."

Rauer said that one of the most controversial elements of the proposed reforms has been the 'Article 13' provisions which concern the extension of liabilities of online platforms.

Under Article 13, content creators would gain greater control over where their copyrighted material appears online and online platforms would be forced to intervene to tackle unauthorised use of the material by users.

Campaigners against the Article 13 plans previously warned that the proposals would result in the automated filtering of copyrighted content online, with the risk that some content permitted under copyright rules – such as that used in works of parody or under 'fair use' exemptions – are removed from platforms, including memes and remixes.

However, the provisions were subsequently amended and supporters of the reforms have said the changes ensure newly emerging platforms are not exposed to the same burdens as more established platforms, and that there are other safeguards on freedom of expression.

"Up until now the person who uploaded the content was primarily responsible and liable for that material," Rauer said. "Under the adopted text, certain platforms will now be under the obligation to screen and possibly filter content in the course of the uploading process. The measure is one of the ways the European legislators wish to close the so-called 'value gap', which lobbyists have argued exists since rights holders do not share in the revenues platforms generate from uploaded content."

"This is quite a paradigm shift in policy given that information society service providers have enjoyed the safe harbour protections under the EU's E-Commerce Directive which the Article 13 reforms carve into," he said.

Article 11 of the proposed new Copyright Directive has also proved controversial. It requires website operators and social media companies, among others, to make a 'fair and proportionate' payment in remuneration for the digital use of press publications.

Information society service providers, like news aggregators or media monitoring services, will be required to honour the new press publishers' right, but there will be limitations to what the new right protects. For example, the use of 'snippets' of content will continue to be permitted without the need for permission from press publishers where the snippet constitutes a "very short extract" or "individual words".

The new rules also provide for a number of new exceptions to copyright, including on text and data mining, and the use of copyrighted materials for illustrative purposes in the context of online teaching, and they also contain provisions on copyright levies.