Since it was published in 2016, the proposal for a Directive on Copyright in the Digital Single Market has turned into a showdown between IP rightholders and Internet users, the latter brought together and represented by the main Internet user associations.
The proposed Directive, as its name suggests, was created with the aim of harmonising and adapting copyright law to the new uses and exploitation models of intellectual creations inherent to the Internet age and new technologies.
The Internet, traditionally an information source for the average user, is now increasingly a means of expression. Every day, millions of Internet users share (by means of tweeting, retweeting, tagging) all kinds of content: photos, videos, text, memes, comments. Problems arise when the content being shared has an owner and permission has not been sought or, in more serious cases, when a third party is making a profit from content shared, perhaps innocently and in good faith, by the user.
The amendments to the text of the proposal for the Directive, adopted by the European Parliament in September, to a large extent reflect the feelings of authors, artists, publishers and other rightholders who are desperately trying to put an end to the culture of sharing something that belongs to someone else in a space where it seems that freedom of expression has to prevail over any other right.
In the parliamentary debate, the bone of contention (or at least one of them) was the issue of the obligation of service providers that share content online to reach agreement with rightholders to avoid users of these platforms being able to upload content protected by copyright or to ensure that, if they do so, the rightholder receives due payment.
Up to now, this type of provider (YouTube, for example) was only obliged to put in place mechanisms for withdrawing content in cases in which the rightholder had reported the providing of protected content (the so-called notice and take down protocol). If the wording of Article 13 adopted by the Parliament is ultimately accepted, it seems that providers of these services will be obliged to carry out prior monitoring and filtering of the content that users wish to upload.
This Article 13 has come under heavy criticism and has been described by certain groups as an attack on freedom of expression and on diversity of opinion online. A review of the full text of the provision and the related recitals should lead to a more moderate view, given that the filtering obligation will only affect those providers acting for profit-making purposes, storing and giving the public access to a large amount of protected works and which are not small or medium-sized businesses. The provision expressly excludes online encyclopedias and scientific or educational repositories.
The amendments to Article 11, which provide for the establishment of a remuneration for press publishers for the digital use of their publications, have generated similar reactions. This is not a new development for Spain, given that since 2014, its own Copyright Act has included a provision for what has become popularly known as the “Google tax”, which in fact led said company to withdraw the Google News service in Spain. The EU provision is considerably less strict than that in Spain, given that it limits the obligation to provide remuneration to 5 years, whereas the provision in Spanish legislation does not set a specific time limit.
The controversy generated by these two provisions has overshadowed other no less important matters that are introduced for the first time in the text of the Directive following the parliamentary debate of 12 September.
One of them is the creation of a right to revoke for authors and performers who have transferred their rights on an exclusive basis. Article 16 imposes on Member States the establishment of rules permitting creators to recover their rights if, after a reasonable time (which shall vary, depending on the type of exploitation involved), the exclusive licensee has not exploited the work. In the case of Spain, this obligation will finally give meaning to and transform into a specific and real obligation the theoretical obligation on exclusive licensees set out in Article 48 of the Consolidated Version of the Copyright Act.
Another matter that has attracted little attention, if not gone unnoticed, is that of recognition of intellectual property rights for organisers of sports events. Article 12 a) does not specify what is to be understood by “organiser of a sports event”, or even what constitutes a sports event, which is in itself a sufficiently broad term to cover all kinds of interpretations.
In any case, the battle does not end here. The final text will be voted on in a plenary session of the European Parliament at the beginning of next year, and only after it has been agreed upon by the Parliament, the Commission and the Council. Until then, it is to be assumed that swords will remain drawn on both sides.
Author: Patricia Mariscal
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