March 28, 2019

New Copyright Directive Approved

26 th march 2019, the European Parliament adopted a directive that strengthens the position of creators and publishers in the new environment of the digital age.

The road has been far from easy, as the adoption of the Directive has taken more than 2 years of arduous debates and clashes between all stakeholders, which far exceed the European scale of its scope. This has led to somewhat paradoxical alignments of positions. On the one hand, the group represented by the major technological platforms (Google, Youtube, etc.) and social activist movements in favour of freedom of expression or net neutrality, and on the other, the group of authors, publishers or the press.

Some of the most controversial points included in the new legal framework go precisely in the direction of reinforcing the protection of the second group, that of content creators, against the use or dissemination of their work that technological platforms such as Google and its Google News service have made until now. This is the case of the Link Tax. (Art. 15), which makes the possibility of these aggregation mechanisms reproducing their contents (mainly press articles and publications) subject to the prior authorisation of the publisher, and recognises the right of remuneration of their headlines.

Another burning point is the obligation to control that Art. 17 of the rule imposes on broadcasting platforms -an example would be YOUTUBE- over the content posted by its users. These platforms must ensure that the content accessible through their services has the corresponding public communication licenses of the owners and, if this is not the case, remove them.

The technical implementation of this measure is a complex adventure, as the main companies affected have already pointed out. The volume of information circulating through its servers is enormous and a minimally effective control can only be established through filtering automation mechanisms (algorithms), which will also generate, as a collateral effect, the blocking of certain perfectly licit contents, if not a potential interference in other aspects of the contents of users that could violate fundamental rights. In order to mitigate these effects to a certain extent, the mandate is stipulated for platforms to set up agile complaint mechanisms through which users can challenge an improper blocking of content.

The aim of the reform has been to adapt the Community legal framework of copyright, and therefore that of each of the EU member states, to the information society. The impact of the digital environment has profoundly transformed not only the habits and modes of access to protected works, but also the limits of copyright and, in a very special way, that which shapes the right to culture and education of all citizens. Combining these two areas is the challenge facing the future development and implementation of the standard now adopted.