Jonathan Tait: Copyright Directive designed to help creatives

Jonathan Tait

The Council of the EU this month gave final approval to the Copyright Directive – a highly controversial piece of legislation aimed at striking a fair balance between the profits made by internet platforms and the creatives whose content they make accessible to users. Although the rules are set to come into force in 2021 when the UK will (likely) no longer be part of the EU, the government has already said it plans to adopt the measures.

The most contentious aspect is Article 17, which will force websites that host a large amount of user-generated content, such as Facebook, Instagram and YouTube, to police content for copyright violations. Proponents argue that for too long these internet giants have profited unfairly from the work of artists and publishers in industries such as music, photography and cinema, who receive nothing in exchange. The new laws mean these companies will finally have to take responsibility by ensuring that they have secure licences for the copyrighted material they provide and creators can recoup what they are owed.

Critics claim the law “threatens the internet” and breaches freedom of expression – a right upheld by the EU Charter of Fundamental Rights. They fear it will severely hinder smaller providers and start-ups that don’t have the resources to filter user content.

This is over-egging the situation somewhat. The directive offers some start-up protection – platforms that have been in business for fewer than three years, with turnover of less than €10 million and fewer than five million unique viewers per month are subject to much lighter obligations.

Opponents also argue that compliance will be problematic due to the complex nature of copyright in itself. There is often disagreement about who owns the rights to online material, and the new law puts websites in the position of arbiter. Companies will understandably want to avoid legal action, and may block content as a precaution even when there is no infringement, impacting artists reliant on the internet to publicise their work.

The law here is not intended to penalise – it has been developed to afford creators greater returns on their creations, assumedly so they can continue creating! Aren’t the rewards better in the pockets of the creators rather than those of Google’s or YouTube’s shareholders? Most detractors agree that the matter of fair remuneration for copyright holders must be addressed. Yet no feasible alternative to the directive has been put forward.

Whatever side of the fence you sit on, neither side has denied that pre-directive, the law did not go nearly far enough, and it is important that the issue has been brought to the fore. Whether the legislation’s perceived threat to the internet will play out remains to be seen, but it will undoubtedly change the way millions of people share and access online content.

Jonathan Tait is a solicitor at BTO LLP

Tags: copyright

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