Alan Wetterhahn, Partner, Fladgate LLP (email@example.com)
Thomas Edwards, Trainee Solicitor, Fladgate LLP (firstname.lastname@example.org)
The lead-up to the vote has been hugely divisive. Support for the approach adopted by the proposed Directive has largely come from artists, authors and creators of content. They argue that the Directive will ensure that they are properly remunerated for their work.
Opponents of the Directive include tech giants that rely so heavily on user-generated content. They are concerned that controls mooted by the proposed Directive will strangle the internet as we know it.
There are two particularly controversial Articles contained in the Directive.
Article 11 provides that publishers must receive a fair and proportionate remuneration for any digital use of their publications.
Article 13 provides that online platforms must take appropriate and proportionate measures to ensure that content they host doesn’t infringe copyright. In practice, this means that almost all but the smallest online platforms will have to filter all content including images, videos and music.
The current position, where users are responsible for the content that they post, will no longer apply. The Directive would place the onus on the platforms to filter their content. Platforms will, in order to monitor this vast amount of data, have to design (or pay for) software which automatically detects infringing content.
The effect of this may ultimately be that sharing of media becomes restrictive and the amount of user content on online platforms is vastly reduced.
The Directive has not yet been finalised within the European legislative process. Once it is approved, because it is a Directive, Member States will have a degree of flexibility in relation to how it will be incorporated into local law.