Discussion of Article 13 of the European Copyright Directive

The Directive on Copyright in the Digital Single Market (more commonly known as The European Copyright Directive) is draft legislation that has the potential to forever change the very nature of user-uploaded media consumption on the internet.

At its base level, Article 13 introduces new systems for the monitoring of the upload of copyright-protected material to tube sites and social media. Currently, where a website that acts as a "mere conduit" in copyright infringement (i.e. it hosts the material but did not upload or produce it), it will not be liable for that infringement in damages (though it may be required to remove or block access to it).

Article 13 removes this protection from the host website and replaces it with an exemption for those hosts that use their best efforts to "implement effective and proportionate measures" to prevent the availability of protectable works identified by rightsholders "expeditiously". Quite understandably websites like YouTube and Facebook are worried about the scope of their liability. Part of the concern is that there is little guidance on what would constitute "effective and proportionate" measures, or what "expeditiously" means in this context: does the host get 24 hours to remove content? 3 days? 30?

There is widespread belief in the digital and tech industries that Article 13 will mean that sites focussed on user-generated content (like Facebook, Google, Twitter etc.) will have to run filters at the point of upload in order to meet the requirements of "best efforts". Presently most sites check content retrospectively. YouTube is the exception, which already filters at the time of upload with its ContentID system (which we have discussed here).

Given the flaws in the long-developed ContentID system there is concern that a roll-out of similar systems in a short timeframe will lead to overzealous automated systems being implemented in an abundance of caution by host websites seeking to avoid any possibility of liability. That in turn will burden creatives who will likely have to prove a negative (i.e. that their content does not infringe any copyright anywhere) at the time of upload.

Presently nobody is really happy with the wording of Article 13: hosts worry about their liability and the cost of implementing the filtering systems, and content-producers worry about their ability to get content published online. The only interested group that seem to be supportive of Article 13 are those long-established rights-holders who will be able to count on a reduction in infringing content being posted online.

We will be keeping an eye on the final negotiations and discussions of the European Copyright Directive through January 2019 and will report on any changes that happen before the implementation stage in the middle of next year.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.