The European Parliament has approved a controversial new copyright law that critics fear could spell the beginning of the end for the open internet and user-generated content from memes to parodies.

The EU Copyright Directive is designed to modernise existing copyright laws for the digital age by forcing tech companies to share more revenue with the producers of the creative works that they publish and to change the way they police infringements.

© iStock/ericsphotography
© iStock/ericsphotography

Media companies and artists from Mike Leigh to James Blunt believe that the law is essential to provide fair remuneration and avoid the exploitation of works online, but free internet advocates argue that it will mandate platforms to embed a censorship mechanism in their networks.

In July, MEPs narrowly rejected an initial draft of the law due to concerns about two specific amendments: Article 11, which orders news aggregators to pay publishers for linking to their sites, and Article 13, which requires platforms to automatically filter new content for copyright infringements.

A group of technology luminaries including World Wide Web inventor Time Berners-Lee and Wikipedia cofounder Jimmy Wales wrote a joint letter to Antonio Tajani, the president of the European Parliament that outlined their objections to the legislation:

"By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users."

Revisions to the proposals followed. At a 12 September vote in Strasbourg, MEPs voted to approve a revised version of the directive.

What effect will the directive have?

The European Parliament voted to support both Article 11 and Article 13 after adding safeguards to protect small firms and freedom of expression.

These include exemptions for non-commercial online encyclopedias, open source software platforms, small platforms and aggregators and the removal of restrictions on sharing hyperlinks to articles with individual words that describe them.

The vote also toughened up the plans on making tech giants liable for copyright infringements by extending their application to snippets that display only a small part of a news publisher’s text.

Michael Gardner, a partner and head of IP and commercial at London law firm Wedlake Bell, told Techworld that the changes would not appease opponents of the legislation.

"These proposed changes to EU copyright laws do raise concerns about the freedom of people to use sites like Twitter to post content that includes the copyright works of others," he said.

"The legislation seems to envisage that big tech companies will have to apply technology to filter out certain unlicensed content."

Platforms will have to adopt a form of automated content monitoring to meet the requirements of Article 13. This will likely take the form of bots that assess anything that is posted for copyright infringements by comparing the content with databases of protected works.

To comply with Article 11, aggregators such as Google News will have to pay publications for sharing their stories. Julia Reda, an MEP from the Pirate Party Germany, believes that this so-called "link tax" will boost "fake news" and propaganda outlets as they are likely to charge aggregators to use their content than more reputable publishers.

Representatives of the tech sector added that online businesses would suffer commercially as a result of the legislation

Giles Derrington, head of policy at technology trade association techUK, argued that the vote would make it harder for companies to serve European markets and restrict the freedoms of the public.

"Requirements for platforms to filter all user-uploaded content will likely result in a reduced user experience and the over-removal of legitimate content," he said.

"The creation of a new neighbouring right for press publishers will make sharing news articles online more difficult, making it harder for the public to find good quality journalism online."

What's next?

After the vote, rapporteur Axel Voss, an MEP representing Angela Merkel's Christian Democratic Union (CDU), said the revisions would protect creatives without threatening the future of an open internet.

"I am convinced that once the dust has settled, the internet will be as free as it is today, creators and journalists will be earning a fairer share of the revenues generated by their works, and we will be wondering what all the fuss was about."

Opponents of the legislation haven’t yet given up hope that it will be overhauled. The directive will have to pass a final vote before it becomes law, as Matthias Koch, a partner at Freshfields law firm and copyright expert based in Germany, explained to Techworld.

"The copyright reform debate isn’t over yet," he said. "The Parliament now needs to start trilogue negotiations with the EU Council to reach a compromise between the institutions’ DSM Directive texts.  The compromise text will probably be back in front of the Parliament for a final vote in 2019, before the European elections."

Gardner added that if the law is passed it may not affect UK citizens due to Brexit, although British businesses serving the EU market will have to comply with the terms.

"It is important to note that the new law, if it goes through, would be a ‘Directive’ –  a piece of legislation that requires member states to implement compliant laws within a period of time - usually around three years," he said.

"The UK will probably have left the EU and completed any ‘transitional period’ by the time this new Directive needs to be implemented. So it is quite possible that for users in the UK, the new laws will not take effect, even if they are adopted by the EU.

"Brexiteers will say this provides an opportunity for the UK to diverge and be a more attractive place for internet companies to do business, free of the EU’s restrictive approach to the internet. With so much uncertainty over the terms of the UK’s departure from the EU, it is difficult at this point to know what impact the proposed Directive will have."