EU Copyright Directive – what’s all the fuss about?

Earlier last month the European Parliament voted in favour of the EU Copyright Directive (known more formally as ‘Directive on Copyright in the Digital Single Market’), proposed legislation designed to better meet the needs of copyright protection in the Internet age.

The directive is an attempt at amending the imbalances between the large digital corporations and the content creators who use these platforms to share their work. The aim is to implement a more rigorous process for protecting works against copyright infringement, while also providing a more efficient way to distribute earnings to rightsholders and reduce the ‘value gap’ between creatives and the big players in the tech world.

With piracy and the misuse of copyright being one of the ubiquitous consequences of the digital era, updating copyright protection laws would be something to get behind and celebrate, right?

Well…

While those in the creative industries, such as publishers, music labels, and individual creatives have thrown their support behind the Directive, many others, especially those in Silicon Valley, are rallying in strong opposition of the proposed laws; extreme opposers even heralding the “death of the Internet” as we know it.

Two specific articles of the directive find themselves at the heart of the polarising debate, namely, Articles 11 and 13.

Article 11

Article 11, aptly nicknamed ‘the Link Tax’, is designed to allow publishers of news content to request online platforms and news aggregators to obtain licences before they are able to share any of their publications. The obvious players finding themselves in the cross-hairs of this article are the larger platforms such as Google and Facebook. However, while individual and non-commercial use has been exempted from the law, there is concern the article will have broader implications, especially on smaller websites who wish to publish snippets and links to articles and who may be unable to afford the required fees.

Will this be the end of the Internet as we know it?

Article 13

Article 13, dubbed the “upload filter”, is the more controversial of the two.

The article is aimed at holding platforms that host user-generated content (such as YouTube) liable for any misuse of copyright that may result from any material uploaded by their users. Essentially, it means these platforms can be sued directly by rightsholders for infringement.

While the current method of policing the misuse of copyright is by responding to complaints by rightsholders, and removing any infringing content accordingly, the directive will require these platforms to take “effective and proportionate” measures to prevent unauthorised works from being uploaded.

“But YouTube has over 300 hours’ worth of video content uploaded every hour. How could they possibly find and stop all the infringing content from being uploaded?” you ask. It is exactly this practicality of complying with Article 13 that has proved one of the more contentious points of the debate.

It is argued that the only possible way to implement this process of prevention is by using automatic filtering technology capable of scanning through every single piece of content and stopping any content it recognises as copyrighted material in its tracks. Easy enough, right?

While it might not be a significant burden for the giants of the tech world, like Google, YouTube, and Facebook, who have the finances to develop and implement such technologies, its effect on smaller platforms appears to be more problematic; with some contending it will hinder the growth of digital platforms in the EU which will be unable to cope with the article’s requirements.

Just as concerning is just how efficient such filtering technology can be. It has been queried how the technology will be able to recognise and distinguish copyright infringement from other authorised or legal uses of copyright, such as parody or satire. This worry has given the article another common nickname: the “Meme Ban.”

For those not familiar, memes are often created by using still images (commonly taken from copyrighted works such as photographs, films, or television shows) and layering text over the top for comedic effect or expression of an idea. While they are most often created without the author’s consent for use of an image, they are still currently considered legal under EU law. Accordingly, there are serious concerns that if the filtering technology required by Article 13 is unable to distinguish legal use from infringement, content such as memes will mistakenly be flagged as infringement.

So, while memes may not be technically banned as the nickname suggests, they may likely still be flagged and killed off amongst the other infringing uploaded content.

What happens next?

The proposed legislation still faces one more round of voting in January 2019 before it will receive final approval. Many believe that, after the successful vote last month, it is very unlikely the legislation will be defeated in the new year.

What remains to be seen is in fact, however, is just much of a disruptive impact the directive will have on the Internet both in the EU and around the world.

Author: Blake Motbey, Paralegal.

 

What does the Universal v TPG decision mean?

At the end of last month, the Federal Court made orders in the Universal v TPG litigation. The results were not unexpected and the key areas of dispute related to costs of complying with the orders and costs of the litigation.

influence legal how to download torrents
From wikiHow “How to download torrents (with pictures)”

Background

Universal and other copyright owners took action under section 115A of the Copyright Act against 20 ISPs, including TPG, to block access to a torrenting website, and associated clones, mirrors and proxy sites. The website was found to have the main purpose of allowing wide-scale downloading of copyright works, including music, movies and books.

Section 115A was added to the Copyright Act in 2015 and allows copyright owners to apply for an injunction requiring a carriage service provider to take reasonable steps to disable access to an online location – in Australia or overseas – which has the primary purpose of infringing, or facilitating the infringement of, copyright. There doesn’t need to be any fault on the part of the ISP for orders to be made.

Section 115A had already been used in the Roadshow v Telstra, Foxtel v TPG decision last year, with similar results.

The offending website in this case, KickassTorrents (KAT) had previously been blocked in Britain, Ireland, Denmark, Italy, Finland and Belgium and had then been shut down in July 2016 following the arrest of the alleged owner, but the case went ahead.

The ISPs had indicated even before that date that they were prepared to block access to the offending sites, but the key question remained as to who should bear the cost of implementing and maintaining the site blocking.

The copyright owners argued that the ISPs should bear the costs because they are subject to the regulatory framework. The ISPs argued that they are innocent parties in the infringement, that section 115A creates a no-fault regime, and that the orders under section 115A benefit the rights holders.

Orders

The Court ordered that the ISPs must:

– disable access by users of their service, to the infringing website, by DNS blocking or equivalent.

– redirect users to a page with a prominent message that the Court has determined the site infringes copyright, or facilitates infringement.

– block additional domain names if the copyright owners apply to extend the injunction.  These orders may be made without further hearing if the ISPs do not object.

The copyright owners will be required to pay the ISPs’ compliance costs, set at $50 per domain name. The Court, noting that the submissions on costs were similar to the submissions made in the Roadshow v Telstra, Foxtel v TPG case last year, supported a uniform approach to compliance costs. If costs exceed this amount, the ISPs will have to bear the additional amount.

The ISPs had also sought orders for costs of the litigation. The Court determined that the copyright owners should pay the ISPs’ costs for the limited area of evidence and submissions on compliance costs, but not the ISPs’ other costs.

Further developments

In February, Village Roadshow commenced a new action to block access to 41 websites including WatchSeries, Putlocker and MegaShare.

There have been reports that Village Roadshow and Foxtel will apply to block additional websites shortly.

There have also been reports that KAT has been revived in a new form by original staff members, with new domain names and a streamlined database, and a revised DMCA takedown procedure. The orders allow copyright owners to apply to block new domain names but this can only be reactive. With torrenting websites potentially able to use a huge number of domain names and structures, it will be interesting to see how much practical protection section 115A will provide to rights holders as cases develop over the coming months – especially when Gizmodo reports that “It’s laughably easy to circumvent Australia’s torrent site blocking”.