Feared new copyright directive: a storm in a teacup?

It is not often that the passing of a new EU directive is considered world news, but you couldn’t have missed the passing of the new DSM directive. Large news websites and programs and countless blogs and vlogs discussed Article 17 (before: Article 13) and the so called “upload filter”. Supposedly, the new directive would seriously limit the free internet. This week, on 15 April 2019, the last hurdle was cleared for the new directive when it was accepted by the Council of the European Union.

First, some background: under the new directive, websites on which users upload content, like Facebook, YouTube and Instagram are responsible for copyright infringements by their users. That is quite something. People were afraid that these platforms would use strict upload filters in order to prevent accountability. Such upload filters would not be able to detect exceptions to copyright, such as the use of the content for parody. What’s more, smaller and new platforms would not be able to afford the upload filters.

So will the new directive be the end of the free internet? In short: probably not. Whereas the text of Article 13 in the proposal (now Article 17) of 14 September 2016 was relatively incomplete, the approved text is much more extensive. Article 17 now contains exceptions to the responsibility of the platforms (for example when they expeditiously respond to a request by a rightsholder to remove content and to keep it removed). The exceptions to copyright like quotation, criticism, review and parody have also specifically been included in Article 17 and the responsibility of new platforms has been limited considerably.

All the protests against the proposal therefore seem to have paid off. The member states of the EU now have two years to incorporate the directive in national legislation. Time will tell whether the free internet will actually be limited and how the platforms will fulfill their duties under the directive.

Mathijs Peijnenburg, copyright lawyer

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