Negotiators from the European Parliament, Council of Ministers and European Commission reached provisional agreement on the wording of a new Copyright Directive on Wednesday.
Frankfurt-based copyright law expert Nils Rauer of Pinsent Masons, the law firm behind Out-Law.com, said that while it has been clear that the EU's copyright framework required urgent updating for the digital age, the new rules are a "true melting pot" of legislative measures and approaches.
There are new exceptions to copyright, new rights being created – both true new neighbouring rights as well as in relation to the level of monetary participation in copyright levies – as well as new mandatory negotiating mechanisms. There is also a shifting and extending of liability, he said.
While some of the provisions are welcome, such as the introduction of a new text and data mining exception, there is a question over whether some of the more controversial elements of the reforms can achieve their stated purpose, he said.
The draft new rules, which have been the subject of significant lobbying by rights holders, technology companies and consumer digital rights advocates, have implications for online platforms and media companies in particular.
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.
Earlier this year the Romanian presidency of the Council of Ministers tabled proposals relating to the liability for unauthorised acts under Article 13 in the event that no authorisation by rights holders is provided for their material to be shared on online content sharing platforms. The compromise wording set out detailed conditions through which online content sharing service providers would avoid liability, and further set out exceptions to copyright that would enable content to be shared legitimately without it being deemed infringement.
Campaigners against the Article 13 plans have 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 European Parliament's rapporteur on the copyright reforms, Axel Voss MEP, said steps have been taken in the wording of the new rules to address those concerns.
"This deal contains numerous provisions which will guarantee that the internet remains a space for free expression," Voss said. "These provisions were not in themselves necessary because the directive will not be creating any new rights for rights holders. Yet we listened to the concerns raised and chose to doubly guarantee the freedom of expression. The ‘meme’, the ‘gif’, the ‘snippet’ are now more protected than ever before."
In addition, as the European Commission has explained, specific rules have been introduced to reduce the Article 13 burdens on "new small platforms", which are considered to be online service providers which have been operating for less than three years in the EU, have a turnover of less than €10 million, and have less than five million monthly users.
"In order to avoid liability for unauthorised works, these new small companies will only have to prove that they have made their best efforts to obtain an authorisation and that they have acted expeditiously to remove the unauthorised works notified by right holders from their platform," the Commission said.
Rauer said: "If we take a closer look, merely limiting the personal scope of application is clearly a political compromise rather than a legally thought-through revision of the article in dispute. Even though the wording does not explicitly call for automated upload filters, other measures to achieve the legislative purpose are hard to think of. Also, to-the-point differentiation is very demanding even with the technical means we have today taking into account the sheer volume of uploaded content. In relation to music, film and TV content we see already smart content ID schemes, in other areas however, these mechanisms are less developed."
"Even the biggest information society service providers will struggle, but what about those less big but still within the scope of the new rules? It will be this group of companies whose approach to implementing Article 13 that will truly prove whether the new law will trigger the aimed-at results without upload-filtering jeopardising other rights, such as the freedom of speech," he said.
The proposals under Article 11 have also provided controversial. They would require 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.
"The use of individual words and very short extracts of press publications does not fall within the scope of the new right," the Commission said. "This means that information society service providers will remain free to use such parts of a press publication, without requiring an authorisation by press publishers. When assessing what very short extracts are, the impact on the effectiveness of the new right will be taken into account."
The Commission also explained that because the new rules do not target individual internet users, they will "continue to be able to share content on social media and link to websites and newspapers (acts of hyperlinking), just as it is the case today".
The new rules provisionally agreed 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.
The reforms still have to be formally adopted by both the European Parliament and the Council of Ministers – the body made up of representatives from the individual EU member state governments. It is likely that this formal adoption will be pursued prior to the European Parliament elections in May.
Once approved and then published on the Official Journal of the EU, EU member states will have two years to implement the new legislation into national law. It is not yet clear whether the UK, due to leave the EU on 29 March this year, will implement all or part of the new rules if and when they are finalised.
Andrus Ansip, vice president of the European Commission and EU commissioner responsible for the digital single market, said: "To finally have modern copyright rules for the whole of EU is a major achievement that was long overdue. The negotiations were difficult, but what counts in the end is that we have a fair and balanced result that is fit for a digital Europe: the freedoms and rights enjoyed by internet users today will be enhanced, our creators will be better remunerated for their work, and the internet economy will have clearer rules for operating and thriving."
Editor's note 18/02/19: Nils Rauer asked us to slightly amend his comments for clarity and we were happy to do so.