by Bill Hannay (Partner, Schiff Hardin LLP, Chicago, IL)
Controversy Continues over New EU Directive, But it Does Create Safe Harbors for Librarians
On March 26, 2019, the EU’s Parliament adopted a new “Directive on Copyright for the Digital Single Market.” The leadership of the EU claims that the directive will modernize and improve copyright rules on a market-wide basis, but the voting was anything but unanimous. It passed 60% to 40% (or 348 in favor, 274 against). Five countries refused to approve the directive: Italy, Finland, Sweden, Luxembourg and the Netherlands, and three other countries (Belgium, Estonia and Slovenia) abstained. See generally https://ec.europa.eu/digital-single-market/en/modernisation-eu-copyright-rules.
The EU leadership claims that the new law will have three major benefits: (1) it will ensure better choice and access to content online and across borders; (2) it will improve copyright rules for research, education and cultural heritage purposes; and (3) it will achieve a well-functioning marketplace for copyright.
The Council of the European Union (a separate body consisting of government ministers from each EU country) officially approved the directive in April, and it went “into force” on June 7th, 2019. However, it will not be fully operative until the completion of the “transposition” phase in which each EU member state is given time to enact its own internal laws to implement the directive. (The member states will have until June 7th, 2021 to do so.)
It will be a bit complicated if the dissenting states continue to oppose the directive. If a member state fails to pass the required national legislation (or if the national legislation does not adequately comply with the requirements of the directive), the EU’s executive branch (called the European Commission) may initiate legal action against the member state in the European Court of Justice.
According to the EU’s website, Europe “needs modern copyright rules fit for the digital age” and the new Directive on Copyright “will make sure consumers and creators can make the most of the digital world.” Moreover, the Directive “will help European copyright industries to flourish in a Digital Single Market and European authors to reach new audiences, while making European works widely accessible to European citizens, also across borders.” The Directive’s aim is to “ensure a good balance between copyright and relevant public policy objectives such as education, research, innovation and the needs of persons with disabilities.”
The five countries that voted against the new directive expressed strong but polite disagreement with the leadership, issuing their own Joint Statement commenting as follows:
We believe that the Directive in its current form is a step back for the Digital Single Market rather than a step forward.
Most notably we regret that the Directive does not strike the right balance between the protection of right holders and the interests of EU citizens and companies. It therefore risks to hinder innovation rather than promote it and to have a negative impact the competitiveness of the European Digital Single Market.
Furthermore, we feel that the Directive lacks legal clarity, will lead to legal uncertainty for many stakeholders concerned and may encroach upon EU citizens’ rights.1
Poland has even gone so far as to bring suit against the European Parliament over the Directive. The country’s Deputy Foreign Minister is quoted as saying: “This system may result in adopting regulations that are analogous to preventive censorship, which is forbidden not only in the Polish constitution but also in the EU treaties.”2
The chief problems with the Directive are contained in Articles 11 and 13 in the original draft (now re-numbered Articles 15 and 17). Article 11 establishes a so-called “link tax,” which will allow publishers to charge platforms such as Google to “link” to publications and display news stories. Article 13 would impose liability on any platforms for displaying content that infringes on someone’s copyright.
The big platforms — such as Facebook, Google, YouTube, Wikipedia, and others — and their customers fear that the Directive will significantly deform and destroy the way the sites currently function. While the Directive says that content platforms cannot be liable for what they’re hosting, that exemption is entirely dependent upon the sites’ efforts to remove anything that infringes on someone else’s copyrighted works, like books, magazine articles, music or pirated movies. Sites can only be safe if they proactively ensure that copyrighted content is not making its way onto the site. The platforms (and everyday users) are of the view that this is a fool’s errand. There is no effective way to detect and prevent millions of users from uploading a copyrighted photo, sound clip, video scene, or other potentially protected work. Platforms would have to install and implement some sort of mass filter, which doesn’t currently exist and would, as one commentator noted, “be ripe for abuse by copyright trolls and would make millions of mistakes.”
For those of you worried about the impact of this new law on the viral creative process known as “memes,” the EU says to stop worrying. Certain tweaks to Article 13 of the law were made earlier this year in order — theoretically — to make memes safe “for purposes of quotation, criticism, review, caricature, parody and pastiche.”
As is often the case with large-scale law reform projects, there are good things accompanying the new Directive as well as the seeming censorship of the previously free-wheeling Internet. Of greatest relevance to libraries and research institutions, the new Directive will allow libraries and other cultural heritage institutions, like archives or museums, to make copies of EU cultural heritage protected by copyright and related rights to preserve it, using modern digital techniques.
The Directive will also make it easier for cultural heritage institutions to conclude licenses with collecting societies, which cover all the out-of-print (or out-of-commerce) works in their collections. This should significantly facilitate the use of works that are no longer commercially available, while ensuring that the rights of copyright-holders are fully safeguarded. This will make it possible for cultural heritage institutions to digitize and make available their collections of out-of-commerce works for the benefit of European culture and of all citizens.
The mechanics of this process will be aided by an exception included in the Directive that will apply in specific cases when no collective management organization exists that can license the use of out-of-commerce works to cultural heritage institutions.
Moreover, the Directive addresses the situation in which a work of art is no longer protected by copyright, i.e., falls into what the legal terminology calls “public domain.” In such cases, anyone should be free to make, use and share copies of that work, be it a photo, an old painting or a statue. However, this is not currently always the case, because some Member States provide copyright protection to copies of those works of art. The new Directive will make sure that all users are able to disseminate online — with full legal certainty — copies of works of art that are in the public domain. For instance, anybody will be able to copy, use and share online photos of paintings, sculptures and works of art in the public domain available on the web and reuse them, including for commercial purposes or to upload them in Wikipedia.
In addition to these defenses or exceptions to copyright violations, the Directive deals across the board with a number of other copyright exceptions. Currently, many of these exceptions to copyright law are currently “optional” and do not necessarily apply across borders. Also, some of them need to be re-assessed in light of today’s technological realities. Therefore, the Directive on Copyright seeks to modernize copyright rules and make key exceptions and limitations applicable throughout the EU, especially those in the areas of teaching, research, and (as noted above) preservation of cultural heritage.
Text and data mining (“TDM”) is an automated process which allows information to be gathered through the high speed machine reading of massive amounts of data and texts. The new rules will allow researchers to apply this technology on large numbers of scientific journals that their research organizations have subscribed to, with no need to ask for authorization for text and data mining purposes.
The new teaching exception will cover digital uses of copyright-protected content for the purpose of illustration for teaching. For example, the exception will ensure that educational establishments (such as colleges, universities, and schools) can make available teaching material or online courses to distance students in other Member States through a secure electronic environment, e.g., a university’s intranet or a school’s virtual learning environment.
But neither the “bad” aspects of the new Directive nor the good ones will be implemented in the near future, until EU member states enact their own “transposition” laws implementing the directive and until the lawsuits challenging the Directive make their way through the courts.
In the meantime, you can still dream a little meme with me and publish it on the Internet without worrying about copyright violations. Oh, hey, I forgot, the EU leadership says that memes will still be protected even under the new Directive. So, naught to worry.
William M. Hannay is a partner in the Chicago-based law firm, Schiff Hardin LLP, and is a frequent contributor to Against the Grain and a regular speaker at the Charleston Conference. He can be reached at firstname.lastname@example.org.