Article 13 of the European Copyright Directive has taken centre stage over the past few months with many speculating if its introduction will hinder creativity or safeguard online content sharing rights.
But with much written about its potential impact on internet freedom, we asked trademark attorney at leading intellectual property firm Wynne Jones IP, Yvonne Onomor, and senior partner and CEO of software and anti-piracy specialist CJCH Consulting, Stephen Clarke,to explore how this controversial change could affect businesses and, if so, what they can do about it.
Despite widespread coverage of the topic, many people may still be unaware of what Article 13 actually is and how it will affect their business, Ms Onomor said.
Article 13 covers online content sharing services that communicate user generated content to the public, it requires platforms to use their “best efforts” to have a licence to use such material, and remove content if they are alerted to pirated uploads.
With this in mind, the changes will mainly affect businesses such as YouTube, SoundCloud, Dailymotion, Facebook and Instagram. I.e. businesses that host a vast amount of content, which is user-generated, Mr Clarkeadded. As part of this, platforms must stop their users from sharing unlicensed copyrighted material, Mr Clarkesaid.
It effectively pits rights holders against tech companies, said Ms Onomor. Naturally, rights holders have overall welcomed the change, arguing that it is essential that content sharing services seek licences and for rights holders be fairly remunerated. While tech companies opposed to the legislation, argue that it could cause businesses and members of the public to suffer.
When it comes to how it will affect businesses generally, it means they will be obliged to remove such content if it infringes on any copyrights. This is a dramatic change for businesses, changing their role from passive to proactive in the fight against copyright infringement, Mr Clarkeat CJCH continued.
The Article will mostly impact businesses that operate as a commercial site, or have an app, where users are able to post material, said Mr Clarke.
“Best efforts” must be made by the business to ensure licenses have been purchased for anything users might upload to any platform owned or operated by the business. Businesses could be held accountable if their users upload copyrighted material onto platforms owned by them, Mr Clarkecontinued.
Currently, businesses are not liable for copyright violations, but they do have to remove any infringing content immediately after being informed by rights holders, Mr Clarkeadded.
Ms Onomor added thatthe new provisions could mean that any text, music and videos posted to blogs, social networks and comment sections must be removed from their platform at the point of upload. This would seriously affect small content creators who use platforms such as YouTube to broadcast and publish their works.
There is a concern that smaller businesses will be disproportionately impacted by Article 13, as they will be less likely to have the resources to reimburse the copyright holders or develop filters that block copyrighted data, Mr Clarkesaid.
Although the purpose of the legislation is to limit the powers of internet giants, like Google, some argue that it may have the opposite effect, and smaller tech companies will likely be more affected, Ms Onomor said.
She explained that filter software is expensive, and it may be that it is only the Internet giants that can afford it. We could therefore see smaller players having to decide between either deploying upload filters, which are expensive and error-prone, or handing over their data to Internet giants, at the possible expense of their independence and the privacy of their users.
But if businesses are affected by the introduction of this article, is there anything they can do to limit any associated risks?
Business will need to ensure they take the necessary precautions to avoid being held liable for any copyright infringement. Precautions will include obtaining pre-emptive licenses for copyrighted material, said Mr Clarke.
If it has not been possible to obtain a license, and copyrighted material has been uploaded, the business may be held accountable unless it can demonstrate that “best efforts” were made to obtain permission from the copyright holder, and that they acted quickly in removing any infringing material, Mr Clarke said.
Whilst it is not yet clear how businesses are expected to find and eliminate infringing content, the Article suggests “proportionate content recognition technologies” or automated filters, could support businesses, Mr Clarke said.
After the European Council voted to adopt the copyright directive into EU law, members of the EU now have two years to adopt the rules into their national laws, which should hopefully give businesses enough time to adapt to the changes, Mr Clarkesaid.
If the UK leaves the EU with a deal, it would apply to the UK during any transition period.
But the UK’s adoption of the directive is by no means certain while Brexit looms as the country will no longer be under its remit once it leaves the EU, Ms Onomor added. Nonetheless, the UK may still wish to align itself with the regulations to avoid any impact on trade negotiations post-Brexit.
