EU Copyright Update: news snippets and user-posted content

The EU Commission has made proposals to modernize copyright protection in the Digital Single Market, but for sites republishing news content or hosting user-generated content, these measures look likely to create new obligations and restrictions.

EU Copyright Update: news snippets and user-posted content

1. Press Publications

a) What’s the issue?

News publishers provide popular and valuable content which is widely read and distributed online, and there is a perception that they are not always able to enforce licensing terms and be paid for this content.

While authors and journalists may have copyrights in what they produce, the rights of press publications to control (and charge for) republication are not always so clear.

Press publications are also used extensively under exceptions to copyright, such as photocopying and private copying, for which rights-holders may also receive compensation.

There is a concern that some news organisations (and so also objectives such as media diversity and access to information) may be endangered if they are not able to be effectively remunerated for digital distribution.

b) What’s the proposal?

The proposed directive would give publishers of news publications the exclusive rights to authorise the online reproduction and making available to the public of their publications by digital means.

This would be subject to the exceptions that Member States have been permitted to make under the EU information society directive, some of which e.g. for photocopying and private copying, where permitted, require fair compensation to be paid to rights-holders.

This new right – also referred to as a related or ancillary right as it exists alongside the authors’ rights – would last for 20 years from the date of publication or the relevant news publication. Significantly, past publications made before the entry into effect of this new measure would also be covered.

“Press publications” would in essence cover newspapers, magazines and any other “fixation” of a collection of informative journalistic works on news and/or other topics published as or as part of a single title by a publisher in any media.

c) What could the effects be?

The proposal seems very open-ended, without any of the limitations even from the recent German and Spanish laws that had similar aims (and ultimately don’t appear to have generated revenue for news organisations). So it appears that everyone would require a licence – search engines, news aggregators, platforms, those posting for profit, or private individuals. The proposal does take into account the EU Court’s Svensson and GS Media rulings to the effect that hyperlinking is not always to be regarded as a communication to the public, but it seems that publication of any snippet could be sufficient to require licensing.

2. The Value Gap

a) What’s the issue?

There is a perceived mismatch between (growing) online consumption of some types of content and the (small) revenues paid to the rights holders for such consumption.

The music industry in particular experiences a problem where user-upload platforms are not required to seek licences for online music streaming. Under current copyright laws platforms may take advantage of a ‘hosting exception’ which means they are not liable for copyright infringements by material uploaded by users, unless they are aware or fail to take it down when they become aware of the infringement. There is no obligation to monitor the content and having in place a system for rights holders to complain has been sufficient up to now.

b) What’s the proposal?

The proposed Directive would require platforms that store and provide access to “large amounts” of user-uploaded content to take appropriate and proportionate measures to (i) ensure the functioning of licence agreements; or (ii) prevent the publication of copyright works.

c) What could the effects be?

The proposed provision is fairly vague. What it does do is strengthen the negotiating position of rights organisations. Although this is not said outright, it seems sites will effectively need to implement content filtering and blocking systems. (YouTube does already voluntarily have in place its – costly – Content ID system, so this may actually affect others more).

Potential areas of doubt include the definition of “large amounts” of user uploads – this may be supposed to bring in some level of proportionality and perhaps work in favour of startups However, this could end up creating different interpretations across the EU.

Finally, the hosting exception and exclusion of any obligation to monitor user generated content under the EU Information Society Copyright Directive aren’t expressly affected by the proposal. For hosting providers that don’t also provide access to the content this might be workable (and this may have been the original purpose of the provision). But for those that also provide access, the relationship between the two provisions (and possibly the communication to the public right itself) seems most unclear, which if not fixed could also lead to inconsistent applications (and legal challenges).

Conclusions

The proposed directive contains other provisions which have been generally seen as beneficial (e.g. a contract adjuntment mechanism for content creators, amendments to certain copyright exceptions in favour of non-commercial research, teaching, and cultural heritage institutions).

However, in the lead up to and since publication, the measures highlighted here have been widely criticised. They are still just proposals and may undergo significant changes before being adopted. Animated lobbying continues on both sides. Although some of the existing information society directive rights are based on the WIPO Copyright Treaty, to which the UK is a signatory, these are not. If the UK leaves the EU before the entry into effect of the measures then the UK will be likely to have a choice over whether to implement them or not.


READ THIS NEXT: Can we pay a vlogger to advertise products and services?