This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context. For up-to-date commentary and information on our services, please see our Beyond Brexit page.
Plenty of column space has been devoted to new EU copyright legislation that significantly increases the infringement risk levels for websites or app business hosting user-posted content (essentially any site with a comments section). The bigger social media platforms have been up in arms, as one might expect in response to new law restricting user content, but there are potentially serious consequences for smaller businesses too. Whether you are interested in “meme bans” or the end of news aggregators, here is what you need to know.
The Copyright and Related Rights in the Digital Single Market Directive was adopted by the European Parliament on 15 April 2019, and we can expect to see it enacted into national law across most Member States over the course of the next two years. The deadline for doing so is 15 April 2021.
With a Brexit deadline day provisionally scheduled for October this year, it is reasonable to wonder whether the Directive will make it onto the UK statute books at all.
Who will be affected by the Directive?
Anyone providing a digital platform (a website, an app etc.) that enables a user of that platform to share, within the EU, content created by someone else. Whether the UK decides to implement such measures post-Brexit or not, most UK platform providers will have some sort of reach into EU territories and will be affected.
How can copyright protected content be shared legally?
If you are providing a platform on which users share copyright protected works (under the Directive an “online content-sharing service provider”), then you can be sued for any copyright infringement committed by your users.
There are exceptions:
- You won’t be liable if your business is a not-for-profit online encyclopaedia/educational or scientific repository, a business to business cloud services, and a number of other categories as set out in Article 2(6) of the Directive.
- Equally, you won’t be liable if the works being shared are covered by a copyright defence, such as quotation, criticism, review, pastiche, parody, or caricature (so no need to worry unduly about the end of memes as we know it – these will in many cases count as pastiche, parody, or caricature).
In all other cases, you will need to comply with various minimum requirements set out under the Directive. At the very least you will need to try to obtain authorisation for the use of copyright works, and act “expeditiously” to take down or block access to any that you are notified of. If you have more than 5 million unique monthly visitors then you will also need to take action to ensure that further uploads of the works or subject matter are not made. If your business turns over more than 10 million Euros annually and is at least 3 years old, then you will also need to make best efforts to ensure the unavailability of works or subject matter that has been notified to you in advance.
To cover off these various requirements, the Directive requires you to set up a complaints mechanism, and properly inform your customers of its existence and operation.
Can I still report stories in the press via news snippets?
Even though the Directive brings in specific protections for the online use of press publications, it does not apply to any non-commercial uses by individuals, or to shared hyperlinks, or to “individual words or very short extracts”. Unfortunately, the legislation isn’t much help when it comes to defining what constitutes a “very short extract”.
The other thing to bear in mind is that the publisher’s (newspaper’s) rights are limited to two years from the publication (measured from the 1 January on the first year following publication. For a work published on 1 August 2019, the publisher’s right will expire on 1 January 2022).
In all other cases, permission is needed from the publisher.
Implementation will be staggered across the Member States over the next two years. As the Directive provides baseline rules only, there is the possibility that some States may legislate for more restrictive approaches than others. We will monitor these developments and keep our clients updated.
If you would like to receive these updates, or if you have any questions about the impact of the new Directive on your business, our team would be only too happy to help.
For any more information please contact our Commercial Team.