Despite the consistent and continuous opposition to the controversial Article 13, the European Parliament has adopted the ‘Directive on copyright in the Digital Single Market’ (the Directive). MEPs debated and subsequently voted in favour of the Directive, 348 votes to 274 (36 MEPs abstained).
The Final Wording of the Directive
The latest version of the Directive can be seen here. Articles 11 and 13 have always been the most controversial elements of the Directive and both articles are included in the final text. In the final version Article 11 has become Article 15 and Article 13 has become Article 17, although for consistency we will continue to refer to them by their original numbers. The final wording of both articles is slightly different to the wording that was agreed on 20 February 2019, although Article 11 and its effect remains largely unchanged.
As we have previously reported, one of the concerns with Article 13 was that it would result in platform operators having to remove considerable amounts of content, including memes, which are usually based on copyrighted images. However, an amendment to Article 13 means that memes will be excluded for the purposes of “…quotation, criticism, review… caricature, parody or pastiche” (now included as Article 17(7)).
This is a very small win for technology platforms that host user-generated content because in theory, it will make it easier for them to comply with the Directive’s requirements. It seems likely that the platforms would seek to retain copyright material falling within the above exclusions using automated means. However, the technology to assess what is genuinely parody etc. is not yet available and so accordingly, a manual review may be needed as well? If so, does this make it easier for larger platforms, who are more likely to have the resources to devote to a manual review, to comply?
More guidance on exactly which platforms will be caught by Article 13 and the steps they will need to take in order to comply is therefore required. Any guidance issued by the European Commission will be influential but not legally binding. This will do little to alleviate concerns and platforms will therefore turn to their lawyers for further advice on exactly what they can and cannot do.
EU Member States, through the EU’s Council of Ministers, now need to approve the European Parliament’s decision and this is due to take place on 15 April 2019. Usually this would be a mere formality, however the Netherlands, Luxembourg, Poland, Italy and Finland released a joint statement this week, stating that they cannot “consent with the proposed text of the Directive”. Nevertheless, the Directive could still be passed by a majority vote.
Assuming that the Directive is passed, it will be published in the Official Journal and come into effect. Member States will then have two years to transpose the Directive into national law. How Member States do this is up to them, meaning the local implementing provisions could look slightly different in each Member State.
The EU will be eager to ensure the Directive is passed before the Parliamentary elections take place on 23 May 2019. The UK is due to leave the EU as early as 12 April but one would expect that if the UK is still a member of the EU when the Directive is passed it should be transposed into UK law. However, as the terms of the UK’s exit are unclear, implementation of the Directive is by no means certain.