Euan Duncan

MEPs previously voted against the Directive in July of this year following public criticism of Articles 11 and 13, which have proven highly divisive.

Controversial elements of the Directive

Article 11, which has been labelled the “link tax,” would require internet aggregators and other online platforms to pay news organisations before they can provide a link to their news story on other sites. This has been seen as a positive step for many news corporations who believe such revenue would help sustain quality journalism, however, search engines and social media companies are less convinced. This is because implementation of this article would allow news organisations to charge companies such as Google, Facebook and Twitter to include as little as two words within a hyperlink from their news stories. Although Article 11 states that publishing “insubstantial parts of a press publication” would not be subject to such costs, it remains uncertain as to how “insubstantial” would be interpreted under the Directive. There is also concern of the potential for abuse of this article by copyright trolls for their own commercial gain.

Article 13, requires websites to filter user-generated content to make sure that what has been uploaded does not breach any copyright rules.

This Article has caused division amongst those in the music industry with some artists (e.g. Sir Paul McCartney) supporting the change stating that this will force online companies to pay artists and musicians remuneration for their copyright work. However, there are others in the industry such as Jean Wyclef who believe that such a move would do more harm than good and could result in the “death of the internet as we know it,” with regard to its use as a platform for new and upcoming artists and musicians.

One of the main concerns with the proposed Article 13 is the potential to punish smaller websites who may not be able to afford the necessary software to keep their pages compliant with the new Directive. This change is unlikely to affect open source platforms such as Wikipedia as the current drafting provides an exemption for such sites.

Additionally, there are concerns that the filters would block out non-copyright material and prevent the circulation of memes which internet users believe should be allowed to be shared for parody purposes and as part of their right to freedom of speech.

What happens next?

Despite the result of this vote, we are still some way from any finalised version of the Directive being implemented or coming into force. Further negotiations are required between European politicians and Member States with a final vote by the EU Parliament scheduled for January 2019.

It is important to emphasise that this is a European Directive and not a Regulation. As a Directive this means that it will not have binding legal force throughout every Member State. Whereas Regulations are directly enforced by each Member State, in respect of Directives, Member States are free to decide individually how each of them wants to implement EU Directives into National Laws.

This is perhaps a cause for concern, as this means that parties who are caught by such laws will have to ensure that they are compliant with each Member States’ national laws. That being said, given that the final vote is due to take place in January 2019, the UK may decide not to implement a similar national law as the UK may no longer be in the European Union by the time that the Directive comes into force.  

We will have to wait and see whether the Directive achieves its aim of rebalancing the relationship between big internet companies and digital creators and whether the UK chooses to have its own legislation governing the recent development of the law of copyright.

Euan Duncan is a partner at Scottish law firm MacRoberts LLP