Earlier this month, the European Parliament voted in its plenary to approve the revised draft of the proposed new European directive on Copyright in the Digital Single Market (the “Directive”). As drafted by the Parliament, Article 13 would see the creation of a new category of services entitled ‘online content sharing service providers’, create a presumption that these services are active when they promote and optimize content; confirm their role (and that of their users) in relation to the nature of the copyright-relevant acts they engage in, but remains vague regarding the content of the cooperation obligations which would befall upon the newly-defined services or how these obligations may impact upon their liability.
To rights holders, the text promises an easier way to demonstrate the active role played by content-sharing services and their subsequent obligation to conclude licences. To content-sharing services, the text offers the possibility of cooperating in preventing the presence of copyrighted material on their platforms.
As the Directive passes through trilogue negotiations, both will be eager to clarify what consequences are likely to unfold from the text regarding the future of the European ‘safe harbour’.
After years of lobbying and months of fierce debate following a failure to obtain parliamentary agreement in July, the European Parliament voted in its plenary on Wednesday 12 September, by a large majority, to approve the revised draft of the proposed new European directive on Copyright in the Digital Single Market (the “Directive”). The proposal adopted by the European Parliament (the “Text”) contains a number of controversial provisions, several of which we will review in more detail over a series of articles. For now, we focus on arguably the most controversial proposal – Article 13.
Article 13 of the Directive seeks to address the ‘value gap’; that is the perception that content-sharing platforms derive unreasonable value from enabling their users to make available content embodying copyright-protected works, without having obtained prior permission from the underlying rights holders of those works.
While the vote represents an important step forward for the Directive, the Text does not represent a final agreed position and we can expect further debate and public pressure in the coming months as the Directive passes through trilogue negotiations before it is ultimately approved and enacted. Nonetheless, it is possible to analyse some of the most significant potential impacts of the Directive, if it is adopted in its current form.