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Provisional agreement reached on the EU Copyright Directive

On the 13th of February, the Council and the European Parliament came to an agreement on the final text of the EU Copyright Directive. A final vote by both institutions is expected in the coming months for this Directive to be approved.

As it stands, the current agreement has received much criticism from various civil society groups and large online service providers for attacking freedom of speech on the Internet.

Two articles are at the heart of the controversy: Article 11 and Article 13.

  •  Article 11 deals with the “right to citation” or the right to use extracts from an original content as a citation without being subject to copyright rules. The current agreed formulation of the article could greatly restrict this right depending on its interpretation, and would require obtaining a “license” for quoting even just a sentence from an original content subject to copyright.
  • Article 13 requires commercial websites/apps to make the “best efforts” to pre-emptively purchase licenses for content subject to copyright that users may upload. It also would require nearly all sites to set up upload filters to identify content subject to copyright. If these “efforts” and filters are not deemed appropriate by a court, the sites would be liable for any content found on such sites which infringes upon copyright.

The two major critiques of these articles are:

  •  The questionable technical feasibility of such requirements.
  •  The impact these articles will have on users’ online experience: facing major censorship or false positives due to over-compliance from sites for fear of being taken to court.

It is clear that this Directive will massively impact the online experience of families all around Europe. While it is important for rightholders to be adequately compensated for their work, it is unclear whether the current agreement will help rightholders without disproportionately affecting certain key rights such as freedom of speech.

Finally, given current technological developments, legislators may be shooting themselves in the foot if they do proceed with the current agreement. Users who experience crippling censorship or who find centralized online platforms/services to be extremely cumbersome to use following the implementation of this Directive, might move in droves to decentralized online platforms/services which are, by their very nature, uncensorable, and where liability is distributed in ways which makes it impossible to identify a specific person or organism to take to court, besides the users themselves. Given the increased possibility for anonymity on these decentralized services, it is highly unlikely that the EU Copyright Directive could be enforced.

COFACE-Families Europe will continue monitoring the situation, and hopes that legislators will find a balanced approach and invites them to consider the current state of technological development and the likely backlash of disproportionate measures.

For more information about the provisional agreement see here:
http://europa.eu/rapid/press-release_IP-19-528_en.htm
https://juliareda.eu/wp-content/uploads/2019/02/Copyright_Final_compromise.pdf