Friday, 8 of March of 2019

On February 13, the Parliament, the Council and the European Commission reached a consensus on the final text of the new Copyright Directive.

At the end of 2016 the Commission proposed to modernize the Community regulations on copyright in the context of the Digital Single Market. Since then, many voices have been raised in favor and against the different versions that led to the text finally approved, with special emphasis on the content of the controversial articles 11 and 13.

Indeed, if something has been achieved by the new legislative development is not to leave anyone indifferent, existing two very well differentiated blocks of opinion. On the one hand, those who have seen in the proposed reform an opportunity to reach a fairer scenario with the authors and facilitate rights holders to negotiate more advantageous remuneration agreements for the use of their works on online platforms. And on the other, those who see the Directive as a threat to freedom of expression and creativity on the Internet.

The text must still be approved by the representatives of the Council, the Parliament´s Legal Affairs Committee, and the plenary of the latter. However, said approval is in the vast majority of the cases a mere formality, so it is highly likely that the text, as currently been drafted, will finally enter into force.

It is not the object of this comment to go into detail on the content of the full Directive. In any case, a brief review of the aforementioned articles 11 and 13 -precepts that have focused the attention of users, media and activists throughout the last months- is given below.

With regard to Article 11, the text of the Directive grants press publishers the right of reproduction and public communication provided for in Article 2 and 3.2 of Directive 2001/29/ EC in relation to the online use of their content by information society service providers.

It excludes from the above, however, those uses of a publication that are limited to "individual words" or "very short extracts". It is not defined, nor any guideline is given at all in relation to what should be understood by "very short", concept whose interpretation, in view of the wording of the said article, seems essential to determine the legality of certain uses carried out by news aggregators (a snippet or extract of a piece of news may appear, for example, in Google News, or be shared on Facebook, provided it is "very short", otherwise the corresponding authorization will be necessary).

For what Article 13 concerns, it puts forward the general premise that digital content providers carry out acts of public communication when they grant access to content protected by copyright uploaded by their users (unless they have the corresponding authorization from the rightsholder).

The above is somewhat nuanced however by means of section 4 of the said article, that states that no illicit would take place at all, if, even without any sort of authorization, the content provider cumulatively proves that i) it has tried to obtain such authorization by all possible means, ii) it has acted conscientiously and expeditiously according to industry standards in order to prevent access to protected content identified by its owners, as well as its future access.

When interpreting whether the requirements mentioned have been met, it should be taken into account in particular, bearing in mind the principle of proportionality, the type of public, the magnitude of the services offered, the kind of works or content that has been uploaded by users as well as the availability of adequate and effective means for such purposes and their cost to service providers.

Here the Directive softens the requirements necessary to enjoy the liability exemption to which we have referred, for companies that have been operating for less than three years or whose turnover does not exceed 10 million euros (article 4aaa).

The text of the Directive does not impose the obligation to establish a content filtering system and literally excludes the obligation to implement a general content monitoring system. However, what is stipulated in Article 13.3 may imply in practical terms the need to develop some type of filtering system in order to access the foreseen liability exemption.

Finally, Article 13, paragraph 5, demands that Member States guarantee the application of exceptions and limitations based on quotation, criticism, caricature, parody or pastiche. In any case, it will be necessary to confirm which are the concrete measures taken for these purposes and how they interact with what article 13.4 puts forward.