Last week the controversial European directive on copyright entered into force. European directives are not directly applicable but impose certain objectives to be developed internally by each member state, who now have 2 years to adapt their national legislation accordingly.
What is the controversy about?
This directive was drafted with the deliberate aim of bridging the “value gap” between tech and content companies. That is, the aim is to address the disparity of income between the Internet giants such as YouTube and Google and the struggling cultural industries (music, journalism) that actually create much of the content hosted by these platforms.
The European lawmaker has taken the approach of determining that the platforms cannot be considered mere intermediaries any longer, and established they are “communicating” the content themselves. This doesn't seem to have much impact in the way things are actually done, but has massive legal consequences. It means that platforms will be directly liable for any intellectual property infringement occurring on their platforms. The idea behind this is to incentivize the platforms to host contents legally and create fairer license and remuneration systems for cultural industries. They are also expected to create a system for monitoring or filtering content before its uploaded and stop infringement in the first place.
Of course this amendment to the current state of affairs has met with strong opposition from tech giants, who are talking of “censorship” and “the end of the Internet”. There is even a rumor that memes and gifs will stop being legal.
How did this work in the past?
The previous directive on this same topic dates back to 2001, when most of the social media we use now daily such as Facebook or Whatsapp did not exist.
Under that regime, the platforms were intermediaries not liable for content unless warned of its infringing nature. This principle was called “safe harbour”, and while it allowed for the rapid development of the Internet, it laso sheltered a booming piracy industry.
How will journalists benefit from the new law?
The European lawmaker also comes to the rescue of an industry in permanent crisis, the media. From now on, news aggregators such as Google News will need to pay a fee to the news organisations they link to.
This measure is not entirely new. In Spain we had it tested in 2014 to a dismal result, with Google News leaving the country to avoid paying the fee. In Germany this rule exists in a more nuanced way: the news organisations may choose to waive their right to the fee in order to keep appearing in searches of aggregators who do not wish to pay. Most of them did waive it so the system does not have any effect.
We still don’t know if the pan-European system will allow for such waiver or if it will be compulsory - but of course for Google News it's not the same to leave one country than to leave the whole European Union.
So, will this be the end of the Internet?
There are still many unexplored issues concerning the application of the directive, but we are optimistic. No new rights are created, but only a more solid framework to enforce them is. Also, filters are already being used quite successfully with certain contents (thus the impossibility to find porn on Youtube). An innovative industry such as the Internet will certainly be able to continue thriving in a new environment that will be, indeed, a little less dynamic, but a little more secure.
(And of course, memes will still be legal, as they fall under the parody exception to copyright)
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We are a patent, trademark and intellectual property law firm based in Madrid, Spain. Visit us at www.emps.es