Copyright directive: death or regenesis of the internet?

The new EU Directive on Copyright in the Digital Single Market which is waiting for its final adoption by the EU member states, has already reputed to be a nightmare for digital world. Despite the claims it was designed for the benefit of journalists and news publishers, many think it would make an end of memes and gifs and substantively complicate the life of social platforms.

The new rules concern primarily such gigants as, partucularly, Youtube, which shall be obliged to seek licences for all uploaded materials. Article 13 is easily the Directive’s most controversial provision. It addresses the perceived “value gap”, i.e. the idea that online content sharing platforms obtain unreasonable value from enabling their users to share copyright content, without ensuring that the underlying rightsholders receive their share.

It addresses the liability of online platforms for copyright-infringing material shared by their users. It applies only to “online content sharing service providers”, i.e. platforms which allow users to share a “large” amount of content which is organised and promoted for profit. So, it will bite on YouTube, social media platforms, music-sharing and video-game streaming platforms and many others. It does not apply to not-for-profit online encyclopaedias, educational repositories, open source software platforms, online market places or private cloud platforms. More limited obligations apply to start-ups (i.e. services that are less than three years old, with an annual turnover of less than ten million Euros and no more than five million unique visitors per month).

To make access to a lot of creations possible, the Directive provided that if a platform is unable to secure the license, though made its “best efforts” to obtain it, such content shall be available. However, still no definitions were made to “best efforts,” which means it would be interpreted only in coarse of its following application.

Meanwhile, the ordinary user may have a sigh of relief — according to the new provisions, in some cases his responsibility for all the uploaded content would be virtually transferred to media platform.

Another user’s right which shall be confirmed by the new Directive is the right to post parodies, criticize and quote from others’ content. While in some states such possibilities previously fell into copyright exceptions, currently they become comprehencive rights.

While Article 13 may have noble aims, it currently functions as little more than a set of ideals, with very little clarity on exactly which platforms will be caught or what they will be required to do. There is likely to be an ongoing lack of legal and commercial certainty until the details are fleshed out, either by the Commission’s Guidance or by European case law.

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