How the New EU Copyright Directive Will Impact Everyone Who Creates Online Content

Paul Gillin

With many organizations still struggling to get their arms around the legal and data governance issues raised by last year’s European Union General Data Protection Regulation, the new EU Copyright Directive has raised the stakes with a set of rules that call into question some basic assumptions about how to manage content in an age of ubiquitous information sharing.

Sources of Contention

The EU Copyright Directive, which the 28 member countries approved last month, imposes new restrictions on the ability of website owners and individual content creators to post or excerpt copyrighted material. Supporters say the overhauled rules ensure fair compensation to content creators. Critics say they handcuff website owners and online publishers to the ultimate detriment of consumers and even the copyright holders the rules were created to protect. One thing’s for sure: The vote by 19 of the 28 EU countries to adopt the resolution is about to make Europe a far more complex place for organizations that publish on the internet.

What’s causing all the hubbub are two articles that were inserted late into the update process. Article 11 requires companies that publish links to content from news organizations to make reasonable attempts to license and pay for permission to excerpt more than a “snippet” from the source material. Article 13 requires owners of online platforms to screen any content before posting to ensure that it doesn’t infringe upon someone else’s copyright.

What Is a ‘Snippet’?

Both articles are vague enough to allow significant room for interpretation. The situation is made even more confusing by the fact that EU Directives aren’t directly binding; each country has latitude to implement the regulation under its own terms.

Countries have a lot of room for interpretation. For example, Article 11 of the EU Copyright Directive doesn’t specifically define the terms “news site” or “snippet,” leaving those details up to individual members. That means search engine providers, newsletter publishers, bloggers, makers of RSS readers or anyone else who publishes extracts of copyrighted content may need to adapt their output for the country in which it’s being consumed. Some critics charge that even the 160-character extracts that search engine providers include in search results may be illegal under the rule.

Article 13 is even more controversial because it shifts the burden for copyright compliance to the front end of the process. Currently, website owners are only obligated to take down material when a complaint of copyright violation is received, but not to verify compliance in advance. Under Article 13, every item of content — including comments, tweets, photos and videos — must be verified before posting, an administrative burden that critics say is too onerous for all but the largest web giants to bear.

Europe for Creators remarks that the EU Copyright Directive has plenty of supporters from the ranks of news publishers, artists and content creators who believe that the value of intellectual property has all but collapsed in the cut-and-paste culture of the internet. Detractors worry that the rules will inhibit free speech and even promote censorship by enabling content creators to dictate who is permitted to link to them, according to the Electronic Frontier Foundation.

Regardless of your perspective, the new regulations will mandate the attention of anyone who posts content online, which these days is just about everyone. In most jurisdictions, copyright is assigned by default to new content, meaning that each creator must decide how strictly to demand enforcement of the new penalties.

The Quote, Unquote Problem

An even bigger concern is about the terms of use for quoting from copyrighted content. For example, many marketing campaigns excerpt published reviews or content published by third parties, a practice that is entirely legal under most fair use provisions. Depending on how individual EU members interpret the directive, such excerpts may now be deemed illegal unless the user obtains the copyright holder’s permission. Even such seemingly trivial cases as a video that includes a background image of a copyrighted photograph may trigger an objection that would prevent the video from being displayed on an owner’s website or a social network.

As with any regulation that covers such a broad swath of territory, the impact will be seen in how strictly copyright holders and member countries will choose to enforce the rules. EU members’ states have two years to implement their versions of the directive. In the meantime, this development bears watching by anyone who publishes information or who benefits from citing the works of others.

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