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Decision-makers: Time to think through the Copyright directive

On 5 July, the European Parliament voted to reject the mandate to start inter-institutional (“trilogue”) negotiations on the reform of the copyright directive with 318 to 278 votes.

The vote was the preliminary culmination of a nearly two-year period of intense lobbying by European rightsholders, publishers, online platforms, the civil society, and other groups.

Copyright law is highly fragmented within the EU, as the current directive has been implemented very differently in the Member States. For this reason, the European Commission proposed a reform to allow for more cross-border access to copyright-protected content online and to widen opportunities to use copyrighted material in, for example, education and research. In a bid to stimulate the creation of high-quality content, the Commission introduced a new right for press publishers, which would strengthen their bargaining position vis-à-vis, for example, platforms when it comes to negotiating and remunerating the use of their content online.

During the following discussions in the European Parliament, this right and how it would be enforced was further fleshed out by parliamentarians, leading to highly controversial solutions, including what is simplistically referred to as a “link tax” and “content upload filters”. Particularly the latter could bear high risks for agencies.

The proposed rules essentially demand platforms to set up licensing agreements with rightsholders. Platforms, in cooperation with rightsholders, would need to install special filters on platforms’ websites in order to ensure the effective and transparent functioning of these licensing agreements. In other words, the aim is to recognise and block any copyright-protected content from being uploaded.

What is concerning for the advertising industry, including agencies, is the uncertainty about how these filters would ultimately work. Agencies frequently use music, images or performances when developing commercial campaigns and clear the rights for their use. At this stage, however, there is no indication that filtering tools could (technically) distinguish between content for which rights have been cleared and content for which rights have not been cleared. The result could be that any content using copyrighted material would be blocked from the outset – be it legally used or not. This would considerably impact the freedom of expression and the freedom to conduct business.

With last week’s rejection of the proposal, an active group of Members of the European Parliament gave a much-needed signal to their colleagues in the Legal Affairs Committee. It is necessary to consider all the implications of the directive properly before coming up with a position, which could have disproportionate consequences on how we use the internet and conduct business online today.

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