Hey that's my content - now YouTube, where's my licence?

You may have heard that the EU Council has voted in favour of the Copyright Directive passed by the EU Parliament. Existing copyright law within the EU is complicated and varies from country to country.

The Directive is an attempt to harmonise copyright law in line with the EU’s Direct Single Market policy. The Digital Single Market is an EU strategy to assist growth to the EU digital economy.

One of the most hotly debated measures introduced by the new Directive is to require certain online content sharing service providers, such as YouTube, Facebook and Twitter to obtain permission from copyright holders before content is uploaded onto these sites. This has been referred to in the popular press as Article 13 (although it is Article 17 in the final text). Article 13 is thought to address a perceived “value gap” between artists, authors musicians and content creators and internet platforms.

Previously, only the user who uploads the content is liable to the copyright holder for ‘communicating’ the content. Article 13 provides that on-line content providers perform this communication.

If licenses cannot be concluded, then the content provider must use “best efforts” to ensure unauthorised content is not contained on these platforms. They must also act expeditiously upon receipt of a “sufficiently substantiated notice” from a copyright holder to remove unauthorised content from their websites.

These obligations will not apply to open source software development and sharing platforms, not-for-profit scientific or educational repositories as well as not-for-profit online encyclopedias.

Newly formed content providers will also be excluded. These are services which have been available for less than 3 years which have an annual turnover below EU10 mill. When the average number of unique visitors exceeds 5 million, these providers must also use best endeavours to remove content and act expeditiously on request.

Memes are apparently excluded from the rules; content generated by users which is used for the purpose of caricature, parody or pastiche are listed exceptions as well as quotes, criticism and review.

The introduction of this measure has provoked some sharp criticism from some who liken the new law as akin to an “automated surveillance” of its users and will stifle freedom of expression.

Article 13 specifically states that it should not “lead to any general monitoring obligations” but this doesn’t seem to sit well with the obligation to use best efforts to obtain an authorisation from copyright owners.

Essentially, it appears the content providers will have to self police content, develop an internal AI clearance procedure and if content is to be used, report to Publishing or other respective bodies.

YouTube already uses filters via its Content ID technology to assist copyright holders to identify copyrighted material. The consequence of Article 13 may be that YouTube and other content sharing sites decide to apply similar technology in a defensive way to prevent users uploading the majority of content to avoid having to negotiate licences.

The Directive does state the Commission will consult with stakeholders and member states with a view to preparing guidance on the application of Article 13 and this may clarify some of the uncertainty.

As member states have 24 months within which to implement the Directive, it remains to be seen how the UK will adopt the changes after Brexit.

To speak to Chrysilla: cdevere@clarkslegal.com