EU Copyright Reform
In May 2015 European Union has adopted the so called Digital Single Market Strategy that consists in initiatives with the scopes of creating an internal market for digital content and service and of making this market easily accessible to consumers and to business companies. Amongst such initiatives, there is the proposal of Directive on Copyright in the Digital Single Market 2016/2018. The objectives of EU legislator are to update and make compatible copyright rules to digital technologies evolution that are radically changing the ways in which works and other copyright protected materials are created, distributed, and used by the public.
The main issues that the above proposal deals with can be found on articles 11 and 13.
The first article regulates snippets over news content provided by Information society service providers that are on-line platforms such as social networks or news aggregators. Such snippets are hyperlinks preview of newspaper articles and are generally constituted by newspapers headlines, images and summaries. One of the most problematic aspects, it has been said, it is the reduction of traffic users towards publishers web-site. In fact, on hand newspaper authors and their publishers want to be rewarded for the abovementioned hyperlinks previews. On the other, on-line platforms and their users are concerned by this proposal since they respectively sustain that it reduces accesses to their web-portals and it reduces the information flow on the internet. In this regard article 11 provides that newspaper editors may authorize or prohibit reproduction and/or communication to the public of their publications. In particular, if an on-line platforms wants hyperlink an article, it shall pay a sum to the editor of that article. This has been improperly called “linking tax” but it is indeed a license agreement between those parties. Where the text to link is composed by “single words or short extracts” that link is out of the scope of article 11.
The second point being addressed by European institutions under the copyright reform is the filter controls that shall be applied by on-line platforms to avoid that copyright protected works are illegally uploaded by their users. In case such filters fail, the on-line platform shall be deemed responsible of possible copyright infringements and/or other infringements. On that point article 13 imposes to information service providers that communicate to the public works or other materials uploaded by their users to adopt measures technologically feasible “to ensure the functioning of agreements concluded with rightholders for the use of their works or (…) to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers”. In other words, this means that these on-line platforms shall adopt filters that are capable to control the contents that are uploaded by web users and in case these contents infringe copyright to impede their diffusion. If it is demonstrated that an on-line platform has not made its best efforts to avoid the spread of the infringing material, it will be deemed direct responsible. Information service providers which have less than three years of existence in the Union and which have a turnover of less than 10 million euros and have less than 5 million monthly users do not fail under the scope of that article.
The proposal of Directive has been slightly modified after a negotiation between EU Parliament, EU Council and EU Commission. It will require final approval by both Institutions in the coming weeks.
It should be noted that some states, including Italy, don’t support the final text of the Directive as “it fails to deliver adequately on its objectives that are to enhance the good functioning of the internal market and to stimulate innovation, creativity, investment and production of new content, also in the digital environment”.
