HomepageCommercial LawPrivate LawPublic Law & Human RightsCriminal LawEU & International LawCareers

Accessibility

Have Irlen Syndrome, or need different contrast? Click the button below for options.

Background Colours

Subscribe

Enter you email address below to subscribe to free customisable article notifications.

Alternatively, click the button below for our various RSS Feeds (available journal wide, or per section).

Article 13 of the Copyright Directive: Is the EU Really Banning Memes?

Article Cover Image

About The Author

Georgina Maddox (Guest Contributor)

Georgina recently completed a Graduate Diploma in Law at BPP Waterloo, following an English Literature degree at Warwick University. Her main interests are in technology and intellectual property law. Outside the law and vac scheme applications, she enjoys painting and hiking.

©エルエルLL

[This Directive is a] threat to our fundamental right to freely share information.

Wikimedia Foundation

How does copyright function in the internet age? This is the subject of the recently proposed – and highly controversial – Copyright Directive, approved by the European Parliament last month. The Directive on Copyright in the Digital Single Market, to give its full name, is not law yet; it will enter formal Trialogue discussions before being put to a final enacting vote, likely to happen early next year.

The European Parliament’s approval of the Directive, formally adopting its position on digital copyright rules, follows its rejection in July of this year due to provisions laid out in Articles 11 and 13, dubbed the ‘link tax’ and ‘meme ban’ respectively. Following amendment, the proposed Copyright Directive managed a majority vote in September – 438 votes to 226, with 39 abstentions. However, Articles 11 and 13 remain the most controversial provisions of the Directive, due to the burden they place on internet service providers (ISPs) and platforms, and the concerns raised about freedom of expression.

Whilst an update for copyright legislation regarding online-specific environments is long overdue, the weight of criticisms against the Copyright Directive, alongside EU courts’ history of convoluted, imprecise judgements in online copyright cases, suggest that its supporters may be overlooking serious issues with the text and approach of the proposed legislation. This article will examine how the proposed measures would tackle the issues they seek to address, and where this development fits in with the history of EU cases dealing with liability for online copyright infringement.

Electronic Commerce (EC Directive) Regulations 2002 exempts liability for platforms and ISPs when they are passive transmitters of information. As such, the E-Commerce Directive provides defences for liability, including:

These exemptions to liability as known as ‘safe harbours’ for platforms and ISPs. ‘Mere conduit’ covers transmission of copyrighted material by a service provider, so long as they did not play any active role in selecting content to transmit or its recipients. ‘Caching’ is an automatic process of storage to benefit the efficiency of internet transmission, and so long as the provider does not modify the content concerned they fall within the exception. ‘Hosting’ is again concerned with providers as passive agents of copyrighted content being found within their internet domain. Essentially, if sites unknowingly host, cache or act as mere conduits of copyrighted content they are not directly liable for infringement. Crucially, their role must be “of a mere technical, automatic and passive nature” (Recital 42, E-Commerce Directive); if the hosts obtain actual knowledge of infringement, or awareness of circumstances apparent to infringement, and fail to act to remove it or disable access they lose the ‘safe harbour’ defences.

Once online content has been identified by rights holder as infringing their copyright, the platforms and ISPs are required to take it down. The proposed Copyright Directive would make platforms liable for uploading infringing content in the first place, requiring them to filter content and take responsibility for illegal uploads, stripping the ‘mere conduit’ exemption from copyright infringement from for-profit platforms. This is what Article 13, the ‘meme ban’, deals with, stating that:

Member States shall provide that an online content sharing service provider performs an act of communication to the public or an act of making available to the public when it gives the public access to copyright protected works or other protected subject matter uploaded by its users.

Simply put, sites like YouTube and Facebook would be responsible not only for taking down copyright-infringing content when identified, as they are currently, but also for catching when such content is uploaded in the first place.

This is complemented by Article 11 of the proposed Directive, which is intended to grant publishers direct copyright ownership over "online use of their press publications by information society service providers". Article 11 goes beyond the current law – the 2001 Directive on Copyright in the Information Society (InfoSoc Directive) – which provides that authors of copyrighted content must assign ownership in that content to publishers. This change therefore means that news aggregator websites such as Google News, which collect and display content rather than producing it, would have to pay a so-called ‘link tax’ to media companies when sharing their content.

Arguments for and against the changes

The supporters of the proposed Copyright Directive say the purpose behind Articles 11 and 13 is to weaken the grip of giant tech companies on internet content, taking profit back to the content creators and rights holders who have their work disseminated online, often without adequate remuneration. Fair pay for ‘artists, notably musicians, performers and script authors, as well as news publishers and journalists’ is a priority, as expressed in the European Parliament’s press release. Small companies are excluded from liability, as is ‘merely sharing hyperlinks to articles, together with “individual words” to describe them’. Democratisation of profiting off content sharing is the aim, breaking up the monopoly of tech giants like Google the intended outcome.

This is one entry point for criticism of the proposed Copyright Directive from some of its strongest opponents. Julia Reda, an MEP and a member of the Pirate Party Germany, argues that the measures are simply a way of allowing publishing gatekeepers, seeing their old business models crumble and turn profits towards internet platforms and content providers, to redistribute income back to them. She, and others, believe that Articles 11 and 13 will usher in a limitation on freedom of expression on the internet – unintended, but as a consequence of how these measures will be enacted. This is why Article 13 is referred to as the ‘meme ban’, as many memes use images that are subject to copyright, but under current rules can be hosted by platforms who are exempted from liability for infringement as mere conduits of information.

Of the two Articles, it is 13 that is attracting the most attention. In an open letter to Antonio Tajani, President of the European Parliament, signed by digital innovators – including World Wide Web inventor Tim Berners-Lee and Wikipedia founder Jimmy Wales – it is only Article 13 that is discussed and criticised. The letter argues that the Article is in direct contradiction to the spirit of the internet as a forum of free exchange, and states:

[I]f Article 13 had been in place when Internet’s core protocols and applications were developed, it is unlikely that it would exist today as we know it.

Of course, that some of the signatories and most vocal critics of the proposed Copyright Directive are connected to the ‘tech giants’ targeted is hardly surprising: they are being directly targeted by the measures and do not want to accept liability for their users’ infringing material. As such, criticisms must be considered with scrutiny.

How will the proposed articles be enforced?

This is exactly what the Articles and Copyright Directive are trying to rectify; the internet has fundamentally changed the way we interact with content, and copyright law must keep up. If users are breaking the law and infringing upon the rights of content authors, shouldn’t the platforms hosting and profiting off such content be responsible for infringement?

The issue surrounds how these proposed measures will be enforced. The text of Article 13 requires providers to prevent copyrighted material being uploaded but does not dictate exactly how this is to be done. It states that ‘an online content sharing service provider shall not be liable for acts of communication to the public or making available to the public’ when it has made ‘best efforts to prevent the availability of specific works’ or ‘acted expeditiously to remove or disable access to these works’ as well as preventing future access.

In 2011, the Court of Justice of the European Union (CJEU) held in Scarlet v SABAM [2011] that ISPs could not be asked to filter content for copyright enforcement purposes. Scarlet, an ISP, successfully appealed the injunction requiring it to install a filtering system of communications made via its servers, per Article 15(1) of the E-Commerce Directive, which prohibits national measures requiring a general monitoring of the information ISPs transmit. It appears, however, that this precedent could be overturned in the abolition of the E-Commerce Directive’s ‘safe harbour’ exemptions if ISPs and platforms are no longer taken to be passive conduits of information, as discussed above.

Again, this could be taken as a step towards recognising the changed landscape of online copyright law. However, given the convoluted history of online copyright infringement CJEU judgments, this seems unlikely. Arguably, by making ISPs and platforms liable for their users’ infringements, the EU has found a neat solution to the problem of unlicensed communication of copyright material to the public in online settings by placing the burden of regulation entirely in the hands of 3rd party tech companies.

The EU’s problem with liability

The case of GS Media v Sanoma [2016] concerned providing a hyperlink to illegally uploaded copyrighted material. The judgment introduced a rebuttable presumption that a ‘hyperlinker’, when posting the link in question for financial gain, had knowledge of the illegality of accessing that linked content. Introducing this element of knowledge to primary infringement in copyright law, previously considered a strict liability offence, outlines an area of tension which escaped the harmonisation of the InfoSoc Directive

Unlike in the UK, EU copyright law contains no recognition of ‘secondary liability’. Secondary liability means that imputed or actual knowledge of primary infringement, most often concerning the selling on or transmitting of infringed content, can constitute liability even if the infringing party did not commit the infringement (copying) of the original work directly. Differentiating primary and secondary liability on the internet is a complex process, given that there is no scarcity of information online (for example, the same image can exist in multiple locations) and that online communication is remote.

The addition of the subjective element of knowledge of infringement can then be traced to cases like Twentieth Century Fox v British Telecommunications (Newzbin2) [2011], which saw the first instance of the High Court’s power of injunctive relief used against an ISP whose service was being used to infringe copyright. A monitoring system was not required; per Arnold J, BT was to block ‘any other website whose sole or predominant purpose is to provide access to the Newzbin2 website’. It also confirmed that a ruling against the infringing website was not first required to block them.

Dramatico Entertainment v British Sky Broadcasting [2012] then confirmed that copyright owners seeking such site-blocking injunctions against ISPs need not serve proceedings against the operators or users of the infringing websites, and neither are they required to join the proceedings. The CJEU has found similarly in Stichting Brien v Ziggo [2017], the case concerning The Pirate Bay’s illegal peer-to-peer torrenting network. If the hosting platforms or ISPs are made aware of infringing content, they are required to carry the injunctive relief. The infringer seems to disappear from the equation altogether.

In light of this, the proposed Copyright Directive takes the practice of assigning the responsibility and burden of injunctive relief on ISPs, as seen in case law, and makes it legislation. As CJEU judgements have struggled to come up with a coherent regime for attacking copyright infringement in an online setting, especially that of the right to communicate a work to the public, they have outsourced a great deal of understanding of the architecture of the internet.

Conclusion

As the dialogue between courts, copyright owners and online platforms opens, the scope of injunctive relief is concerned with protecting the commercial interests of the parties to action. This can be seen in the recent UK Supreme Court decision in Cartier v British Telecommunications [2018], which concerned the copyright owners indemnifying the costs of BT’s compliance with the injunction to block infringing websites. Together with the judgments in Newzbin2, Dramatico and Ziggo, it could be seen that the working solution to the difficulties facing a doctrine of online copyright infringement have been bypassed in a convenient market solution, where the actual infringers are themselves secondary to the proceedings.

Increasing freedom is being given to ISPs to determine how to deal with injunctions; the CJEU case Telekabel v Constantin [2014] found that in EU law, injunctions against ISPs do not need to specify measures ISPs are to take to block illegal content. This is problematic in that the proposed Copyright Directive finds its basis of remedial action in ISPs and platforms — the tech giants themselves — at the expense of a fully formed approach to determining liability for infringement in an online environment. In direct contradiction to SABAM and E-Commerce Directive provisions, Article 13 provides for an obligation on the part of ISPs to monitor the activities of their users, and report back to copyright owners. This seems to have seized on the ISPs having superior technological knowledge to the courts, with the idea that they will guide the much-needed reform of online copyright infringement.

The proposed Copyright Directive has been voted for and supported in good faith. Remuneration for creative content is a major issue in the internet age and protecting the rights of creators and publishers is as important as facilitating the free exchange of information. Yet, the clarity that has been lacking from previous copyright legislation and case law, when it comes to an online setting, is still to be found, and derogating responsibility to market players cannot be the solution.

For the latest articles straight to your inbox, you can subscribe for free. Alternatively, follow @KeepCalmTalkLaw on Twitter or Like us on Facebook.

Tagged: Commercial Law, European Union, Intellectual Property

Comment / Show Comments (0)

You May Also Be Interested In...

The Death of Copyright Law's Idea/Expression Dichotomy

2nd Feb 2018 by Ted Cook (Guest Author)

Problems with Trade Marks for Shapes

16th Jan 2018 by Connor Griffith

Shake up for EU Trade Marks

24th Sep 2015 by Jade Rigby

Unified Patent Court - A Real Proposition?

6th Oct 2014 by Maxi Kussatz

Is it Possible to Trademark a Colour?

11th Jul 2014 by Maxi Kussatz

Competition v Intellectual Property - Clarity but little substantive change

27th Mar 2014 by Chris Bridges

Section Pick May

Taming the Retail Giants: The Impact of Mergers & Acquisitions on Competition

Editors' Pick Image

View More

KCTL News

Changing of the Guard: Moving Keep Calm Talk Law Forward

12th Aug 2018

An Anniversary or Two: Four Years of Keep Calm Talk Law

11th Nov 2017

Rising from the Ashes: The Return of Keep Calm Talk Law

18th Nov 2016

Two Years On, Keep Calm Talk Law’s Legacy is Expanding

11th Nov 2015

Keep Calm Talk Law's First Birthday

11th Nov 2014

Twitter

Javascript must be enabled for the Twitter plugin to function. Click below to visit us on Twitter.

Free Email Subscription

Subscribe to Keep Calm Talk Law for email updates, and/or weekly roundups. You can tailor your subscription on activation. Both fields are required.

Your occupation / Career stage is used to tailor your subscription and for readership monitoring.

Uncheck this box if you do not want to receive our monthly newsletter.

By clicking the Subscribe button, you agree to our privacy policy and terms of service. Please ensure you read these in full.

Free Subscription