On the 26 March 2019, the European Parliament voted for the Directive on Copyright in the Digital Single Market, otherwise known as the EU Copyright Directive, a new law that makes sweeping changes to how copyright-protected content is dealt with on the internet. The new law, regardless of whether the UK leaves the EU through Brexit, will apply to the UK during any transition period and has two Articles that could have a significant impact on you and your business, Article 11 and Article 13.
Article 11 puts the onus on businesses, including search engines and news aggregate sites, to ensure that they have copyright licenses for any content that they link to from their website. This means that anybody using small samples of any online journalistic content on their website must get a license from the publisher of that content first, before displaying a link to that content.
Article 13 makes widespread changes to how businesses can use and display content generated or uploaded by their users or customers online. Any business that has an online content-sharing aspect must now ensure that they obtain the license for any copyright-protected material uploaded or shared by a user. Failing to procure a license means that the business can be held liable and, in such circumstances, it must demonstrate that it made “best efforts” to secure permission for the content from the owner of the copyright. As a last resort, a business must demonstrate that it made “best efforts” to ensure that any permission-less content was removed and made unavailable to users as soon as possible.
Article 11 - What does this mean for your business?
- If your business has a website or blog, try to minimise the number of links that are provided to content generated outside of your organisation. For every link to an external source, you must get in contact with the owner of the copyright and secure a license.
- If your business showcases the work of your users, ensure that explicit permission is given by each user for you to use their content from the outset of their business relationship with you – a clause in a contract, suitably signposted and highlighted, may be a good idea to avoid all doubt.
- If your business generates content, and you see other websites or businesses linking to that content without your permission, then you may have a case to pursue those businesses for copyright infringement. If you previously provided your content for free, consider the pros and cons of monetising access to your content in this way – the extra profit may not be worth the potential bad press of pursuing copyright claims.
Article 13 - What does this mean for your business?
- If your business involves providing access to user-uploaded content on your website, then you must make “best efforts” to ensure that you hold the copyright license to any material that your clients could upload.
- Due to the difficult challenge this presents, except in very narrow circumstances, a recommendation would be to have an upload filter of some kind, capable of pre-emptively determining whether the material is copyrighted or not and removing any content for which you do not hold the licenses.
- Your business must provide a complaints or redress procedure for your users, if they feel that their content has been unfairly or unlawfully removed. You must liaise with the person that you believe owns the rights to the removed content in processing those complaints.
- Article 13 allows for some grading of what “best efforts” means, depending on the following factors:
- If your business qualifies as a microenterprise (fewer than 10 employees and an annual turnover of less than approximately £1.7 million) or as a small enterprise (fewer than 50 employees and an annual turnover below approximately £8.5 million) then you will not be held to the same standard as larger businesses;
- If your userbase tends to upload a large amount of content, proportional to its size, then you may not be held to same standard as businesses that host a small amount of content; and
- Depending on how technology develops, you may only be held to the industry best practice. This will depend on the availability of upload filters is low, whether the costs of filters are disproportionate, or if filters are ineffective in preventing the upload of copyrighted material.
Having said that, many of the key ideas within points 1 – 3, such as “industry best practice”, are not yet defined precisely and are likely to be clarified by guidance to be issued in the future by the European Commission.
While the European Copyright Directive represents a sweeping change to the way that copyright law works online, there are key areas that require a ‘wait-and-see’ approach. These include how “best efforts” and “industry best practice” are defined and exactly how liaising with rights holders will work in regard to obtaining licenses for content and removing content for which your business does not have a license.
Having said that, there are two things you can do right now to prepare your business for the implementation of the Copyright Directive:
- Reduce the number of links to outside content on your website and ensure that you have the correct license to share any content to which you do link; and
- Put into place an upload filter, prevent the upload of certain file types, or do anything else that you can to try to ensure that your users do not upload content for which you do not have the license.