20 September 2018

‘A sledgehammer to crack a nut’ – Our expert’s take on the EU copyright reforms

An image of Senior Consultant Charles Oppenheim

Senior Consultant at Naomi Korn Associates, Professor Charles Oppenheim, gives his views on the European Parliament’s copyright reform.

On 12 September 2018 the European Parliament voted to approve proposed changes to European copyright law. While some have welcomed the changes, aspects of the reforms; the controversial Articles 11 and 13, have sparked serious concern for the future of online content.

The reforms particularly target the internet giants, such as Facebook, Google and YouTube, forcing them to take stricter measures to manage online content and prevent copyright breaches.

In essence, platforms will be required to ensure the correct copyright agreements are in place for any third party content shared, and, if none exist, either create new ones or remove the content. While this could be seen as a positive move to force providers to take more responsibility and ensure creators are fairly compensated, our Senior Consultant Professor Charles Oppenheim fears the broad nature of the reforms will negatively impact online content.

‘The likes of Google and YouTube aren’t going to take the time to ensure the correct rights agreements are in place for potentially millions of third party content creators, they’ll just take the easy way out and take content down or restrict access to it.’

He adds, ‘The software they use is also not sophisticated enough to identify the difference between genuine and deliberate copyright breaches and content that is shared for good reasons. Huge amounts of valuable content will be lost.’

Charles also feels the reforms have serious implications for smaller organisations, academic institutions and research.

‘While the reforms allow for the display of third party content when there is absolutely no commercial output, the wording is so exact that hardly any institutions will ever really be exempt. Research organisations, museums, galleries and libraries, all have some form of commercial output and so could be targeted. The reforms are too sweeping and do not take into account the variety of online platforms and institutions that copy content. It’s using a sledgehammer to crack a nut.’

There are still further implications. New restrictions will apply to Text and Data Mining (TDM) – the use of software to analyse huge volumes of text or data. Article 13 includes an exception that allows for data to be scanned and therefore copied for such analysis, but strictly for non-commercial purposes. An organisation carrying out TDM for research may never be able to use the results of its work.  

Critics also claim Article 13 will negatively impact EU research into Artificial Intelligence. This ongoing research makes great use of TDM software and would, inevitably have a commercial output in the future. By voting for these sweeping changes, critics argue the European Parliament has effectively restricted huge areas of research and potential future development in this area.

In addition, the controversial Article 11 will require online platforms to pay newspapers for extracts of their content, even small ‘news clippings’ used in links. The so-called ‘snippet tax’ does not apply to the hyperlinks but all other content is included.

‘This means that any online content producer will need to engage in lengthly bureaucratic negotiations with newspapers in order to use any content at all,’ says Charles.

‘This will inevitably restrict creativity and response time and ultimately stop people producing content at all.’

There are some positive changes contained within the reforms. Libraries and academic organisations will benefit from a cross boarder teaching exception, which will permit the copying of material for teaching purposes in different countries. Previously only UK copyright law allowed this. A preservation exception is also included. Organisations like museums may make copies of material in order to preserve it. However these copies can be used for no other purpose and so may never be visible to the public.

For Charles though, the negatives outweigh the positives.

‘I would want to see Article 13 abolished altogether, the implications are just too damaging to research and content creation. I feel more effective copyright reform would see the introduction of genuine, random sampling of online content for copyright breaches. Based on ‘License of Right‘ the copyright holder would grant rights for the use of their content to the government or large body, who would then compensate them based on the sample of its use. This would protect creators but still allow room for content creation and sharing for the benefit of the public. As it stands these reforms are too broad and unsophisticated, and ironically seem to be against the innovation and free enterprise which the majority of MEPs would claim to be for.’

So what are the implications of these reforms on UK copyright law?

The draft directive is likely to be finalised by April 2019. Member states will then have two years to either implement the reforms within the framework of their existing laws, or to simply adopt the directive as law.

Although it is highly likely that the UK will have left the EU by this point, Charles believes the reforms are still likely to have an impact.

‘While the UK won’t be obliged to adopt the reforms, there may still be pressure on the government to align themselves with EU copyright law if they want to continue to do business with Europe.’ says Charles.

‘In my opinion it’s highly likely we will see these reforms become law, regardless of Brexit.’

(c) Naomi Korn Associates, 2018, Some Rights Reserved. The text of this blog is available for reuse under a Creative Commons Attribution Sharealike licence.