EU Parliament agrees changes to controversial copyright law
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EU Parliament agrees changes to controversial copyright law

The Directive’s rapporteur, Axel Voss, said in a press conference after the 12 September vote that EU lawmakers have addressed concerns that led the parliament to initially reject the directive in July.

He said that in light of the vote in July, the parliament had created exceptions for small businesses and independent bloggers, excluding hyperlinked text from new licensing rules and introducing measures to ensure wrongfully removed material is quickly re-uploaded.

Some MEPs had rejected the Directive in July due to concerns that articles 11 and 13 could restrict free speech online and disproportionately impact small platforms.

Article 13 would require online platforms to monitor posts for breaches of copyright. Frankfurt-based Hogan Lovells partner Nils Rauer, speaking to GDR after the vote in July, said placing the liability on service providers to regulate posts on their platforms contradicts European case law as well as the eCommerce Directive.

In June, in response to a request by Voss to assess whether article 13 clashes with the EU’s Charter of Fundamental Rights, the European Data Protection Supervisor concluded that the provision does not mandate general surveillance of activities on the internet, since it focuses on uploading content to a publicly available platform which cannot be considered a confidential communication.

The body also found that while article 13 expressly stipulates that it should not require processing of personal data, it would be “difficult if not impossible” to avoid doing so when meeting the requirements. The EPDS therefore indicated that actors would need to comply with the GDPR when processing data. 

A letter by pressure group Electronic Frontier Foundation to European Parliament President Antonio Tajani in June said that article 13 will require internet platforms to perform automatic filtering on all of the content that users upload, turning the internet into a tool of “surveillance and control”.

YouTube, one of the platforms that will be affected by article 13, said in a statement on the new law: "We've always believed there's a better way than this. For both European creators and consumers, it's vital to preserve the principles of linking, sharing and creativity on which so much of the web's success is built."

It also said that the legislation is not clear enough on which platforms are affected by the new rules and argued that the cost of putting in automatic filtering technology will unfairly burden small companies.

The provision also requires platforms to check they don’t unwittingly catch any work that does not infringe the rules and will be required to have a team of people, rather than algorithms, to quickly redress any wrongfully removed content.

The Directive suggests publishers and service providers cooperate to ensure any wrongfully removed content is put back up as quickly as possible. Hogan Lovells partner Rauer said that this may be more difficult to achieve in practice than the legislators anticipate as it will require significant investment due to the large amount of content that is posted online.

Article 11, the Directive’s other controversial provision, requires online platforms to acquire a license for journalistic content they provide snippets of. These snippets often contain enough content so that the viewer doesn’t need to click the link, depriving the original publisher of website traffic and advertising revenue. 

But Rauer told GDR that exercising the new right effectively might vary for different sized companies. Large publishers have the power to negotiate with Google and others, but smaller companies will have to come together in associations to lobby for good deals, he said.

The bill will now be debated by the European Commission, Parliament and Council, before facing a vote by the legal affairs scrutiny committee and a final plenary vote in January 2019.

Rauer said it is clear that a “pan-European right for press publishers” will be put in place and that substantial changes to the Directive are unlikely, as the right contained in article 11 has broad support from all three EU institutions.

“There will be some debate about the details, but the important thing is that that right has gone through”, he said.