The EU Copyright Directive

EU Copyright Directive: Watershed Legislation or GDPR 2.0?

Mark Leech 5 years ago

It’s fair to say that most of us are somewhat tired of EU talk right now. However informed and invested any of us are with what’s been going on for the last three years, recent weeks have surely worn us all down to the point of apathy.

However, lost somewhere in the Brexit noise is a newly-approved EU directive that could have significant impact on our day-to-day digital experiences, both as generators and consumers of content.

This week saw the 'Directive on Copyright in the Digital Single Market 2016/0280 (COD)' approved by the European Parliament. Otherwise known as the 'EU Copyright Directive', the legislation seeks to firm up copyright protection within the EU single market, specifically in online contexts.

The directive has jumped through several bureaucratic hoops to reach this stage, including:

  • First version proposed to the European Parliament Committee on Legal Affairs in June 2018
  • Revised version approved by the European Parliament in September 2018
  • Final version presented to the European Parliament following Trilogue negotiations (talks between the European Commission, the Council of the European Union and the European Parliament) in February 2019

As reported across most major news networks in the past week, including the BBC and The Guardian, the final version of the directive was this week voted on and approved by the European Parliament.

Comparisons to GDPR have been made, with similar questions being asked about how to police the directive in the real world.

What is the EU Copyright Directive?

The directive is made up of several Articles designed to increase the policing of copyrighted material across the web within the EU Single Market, with the objective of promoting creativity within the bloc.

It is an extension to existing EU copyright law and forms part of the EU’s bigger ‘Digital Single Market' project.

The elements that have caused the most ripples in digital circles are Articles 11 and 13 (later numbered 15 and 17 in the final version). These articles suggest that news aggregators may have to pay a fee or obtain a license in order to link to news articles (Article 11) and websites that publish user-uploaded content may be required to use content-matching technology to identify material that infringes copyright law, in real time (Article 13).

What could it mean for brands and marketers?

The biggest impact Article 11 could have for marketers is undoubtedly in Google’s search results. If Google has to ‘pay’ in order to link to news articles, either from featured snippets on main SERPs, or from Google News, it could potentially result in a huge shake up of current SERPs if Google decided to pull any of that functionality.

It could mean that more SERP real estate becomes available, which would likely be taken over by additional paid placements. This could have a positive impact on PPC CPCs if more ad spots open up at the top of page 1. Or it could increase the value of organic results, if that real estate is replaced by shifting up existing organic results. Position Zero could go back to being plain old Position 1!

Alternatively, if Google wanted to retain news article linking in SERPs, it could increase CPCs to offset any additional costs, leading to higher media spends.

Another potential impact could be on social media. Immeasurable amounts of posts on Facebook and Twitter are published every day with links to articles, posts, blogs and news pieces. As they are links, does that mean Facebook/Twitter has to pay for them to be on their site, even though the link was published by a user, not by the platform themselves?

From an Article 13 perspective, the biggest impact may be a positive one, with much more assurance potentially in place for brand protection. This may make it more difficult for brands and marketers to include copyrighted material in their creative assets, but that would have needed permission anyway.

Unfortunately, it is users and the social networks that will feel Article 13 the most - with potential effects on meme sharing, the amount of content uploaded to Youtube and the sheer volume of content added to and shared via Facebook, are just a few examples. So much so, in fact, that this article has been nicknamed The Meme Ban.

What has the reaction been?

As with anything to do with a) the EU, b) politics and c) restricting the internet, there have been polarising reactions from all corners of the web.

The EU themselves tweeted very positively about the directive’s approval, claiming that freedom of expression and access to content would be enhanced for European citizens.

Digital-first groups like the EFF were less positive and claimed that the EU has ignored the will of the people by approving the directive.

At an individual level, many ‘on-the-ground’ internet users tweeted their dismay, with little support for the directive being seen.

Perhaps surprisingly, not all Euro MPs agreed with the bill’s approval, with Marietje Schaake questioning its impact on the youth of Europe.

As is to be expected, many digital professionals expressed concern, including Firefox-creator Mozilla.

Policing

As Article 13 suggests that technology will be used to police copyright infringement in UGC (user-generated content), policing for this part of the directive should be a simple procedure within the relevant softwares, with ‘punishment’ being that your content is rejected.

Article 11, however, will require much more manual policing and, as has been seen with GDPR, cracking down on offenders will be a time-consuming and laborious process. News aggregators (and potentially even blogs and social networks) will have to be crawled (either automatically or manually), evidence gathered and cases raised if news links are being used outside of the article’s guidance.

As with GDPR, the viability of policing this effectively is questionable and it is perhaps aimed at the big players rather than individuals or small websites.

The true impact of this directive remains to be seen, but it will be exciting to see if the copyright protection benefits outweigh the UGC restrictions and internet freedom negatives, or vice versa!

To talk to us about this new EU directive further, please don’t hesitate to get in touch.

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