Felix Reda

• Extra copyright for publishers: Article 11 of the proposed copyright reform directive says that copyright protection (specifically the reproduction right and the right of making available to the public) shall be extended to press publishers.
• 20 year term: The right is granted for 20 years after publication (Article 11/4).
• Retroactive: It would apply retroactively (Article 18/2) to existing publications.
• Individuals affected: The law is not limited anywhere to only apply to commercial users or extracts of a certain minimum length.
• Not covered by an exception: Exceptions to copyright like the one for quotation will still apply – but in many EU countries, sharing an extract without further commenting on its substance is not covered by that exception. For example, in Germany “the work quoted [must be] intended as evidence of own statements and as a basis for discussion. The quotation should be used to justify, intensify and ensure understanding of what has been presented. Utilisation of a quotation is not permitted when it is only given as an example. The quotation must be incorporated into the new work”
• Bad even if unenforced: Whether they will enforce this new right or not will depend on the individual publisher. While this means that not every use of a snippet will cause legal consequences, to be on the safe side, any website quoting news articles will have to research the publisher and find out or inquire about their policy.

• Extra copyright for publishers: Article 11 of the proposed copyright reform directive says that copyright protection (specifically the reproduction right and the right of making available to the public) shall be extended to press publishers.
• Creative headlines affected: Golem.de reported [in German] that Oettinger specifically said that this law would also apply to news headlines unless they are purely factual. “We are pope” thus likely counts as a headline specifically targeted by this law.
• Even generic headlines affected? The protection of headlines may be even more far-reaching in practice, as neighbouring rights such as this one, which protect the producers of content rather than the original authors, generally do not require content to be an intellectual creation worthy of copyright protection. Nothing in the proposal indicates that purely factual headlines would actually be excluded from the new right, though it may be difficult in practice to decide whether somebody had copied such a headline or came up with it independently.
• Twitter an intended target: German press wire service DPA quoted [in German] Oettinger’s staff as confirming that “services like Twitter, where content is shared, are the intended targets of the law”
• Individual users affected: The Twitter terms of service state that “by posting content you grant us a license to copy [and] reproduce such content”. When this law passes, you will not have such a right to grant. Thus if you sent that tweet and Twitter didn’t pay – because they chose not to, or could not agree on a fair price – you would be in violation of the terms of service (subject to deletion of your account) and legally liable.

• Extra copyright for publishers: Article 11 of the proposed copyright reform directive says that copyright protection (specifically the reproduction right and the right of making available to the public) shall be extended to press publishers.
• Not just about news: “Press publication” is defined in Article 2/4 as “a collection of literary works of a journalistic nature” “within a periodical or regularly-updated publication under a single title” “published in any media”.
• Twitter an intended target: German press wire service DPA quoted [in German] Oettinger’s staff as confirming that “services like Twitter, where content is shared, are the intended targets of the law”

This would be troublesome under two separate provisions of the copyright reform, one targeting you and one targeting the bookmarking service:

1. Extra copyright for publishers:

• Extra copyright for publishers: Article 11 of the proposed copyright reform directive says that copyright protection (specifically the reproduction right and the right of making available to the public) shall be extended to press publishers.
• Not just about news: The site of a magazine like Wallpaper* falls under the definition of a press publication – a “journalistic publication, regularly updated, for the purpose of informing or entertaining … for instance monthly magazines of general or special interest” (Article 2/4).
• Not just about text: “‘press publication” is defined in Article 2/4 as “a fixation of a collection of literary works of a journalistic nature, which may also comprise other works or subject-matter” – so photos are included.

2. Upload monitoring obligation

• New obligation on web services: Article 13 of the proposed copyright reform directive introduces new obligations for “information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users” – contradicting Article 14 of the E-Commerce Directive, under which services hosting content are not liable for content uploaded by their users. Recital 38 tries to remove this liability exemption from any host provider which “plays an active role, including by optimising the presentation of the uploaded works or promoting them”.
• Upload monitoring: The obligation is to either “ensure the functioning of agreements concluded with rightholders for the use of their works” or, supposedly if such agreements are not reached, “prevent the availability on their services of works identified by rightholders” through measures “such as the use of effective content recognition technologies”. This contradicts Article 15 of the E-Commerce Directive, which explicitly disallows a “general obligation to monitor the information which [providers] transmit or store”.
• Pinterest affected: In its impact assessment of the proposed law, the EU Commission determines that “services such as Pinterest are also likely to fall into this category” [Pg. 152, footnote 466]

• Extra copyright for publishers: Article 11 of the proposed copyright reform directive says that copyright protection (specifically the reproduction right and the right of making available to the public) shall be extended to press publishers.
• Not just about news: “Press publication” is defined in Article 2/4 as “a collection of literary works of a journalistic nature” “within a periodical or regularly-updated publication under a single title” “published in any media”.
• Copies only for lawful use: Crawling the web is currently made possible by an exception to copyright that is essential for the functioning of the web. On the one hand, any reproduction of a protected work requires a licence, on the other hand, the exception explicitly allows copies that are “transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable a transmission in a network between third parties by an intermediary, or a lawful use”. Up to now, it was clear that the display of search results, which by themselves are too short to come into conflict with copyright protection, is a lawful use. Therefore, making copies that are incidental to providing search functionality is also lawful. If this is changed through the introduction of the new extra copyright for publishers, which would apply even to smallest snippets, then displaying search results leading to news websites would no longer be lawful, and by extension, also the making of index copies by search engines would no longer be legal under the exception.

• New obligation on web services: Article 13 of the proposed copyright reform directive introduces new obligations for “information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users” – contradicting Article 14 of the E-Commerce Directive, under which services hosting content are not liable for content uploaded by their users. Recital 38 tries to remove this liability exemption from any host provider which “plays an active role, including by optimising the presentation of the uploaded works or promoting them”.
• Upload monitoring: The obligation is to either “ensure the functioning of agreements concluded with rightholders for the use of their works” or, supposedly if such agreements are not reached, “prevent the availability on their services of works identified by rightholders” through measures “such as the use of effective content recognition technologies”. This contradicts Article 15 of the E-Commerce Directive, which explicitly disallows a “general obligation to monitor the information which [providers] transmit or store”.
• Unclear target: What exactly constitutes “large amounts of works” remains undefined.

• New obligation on web services: Article 13 of the proposed copyright reform directive introduces new obligations for “information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users” – contradicting Article 14 of the E-Commerce Directive, under which services hosting content are not liable for content uploaded by their users. Recital 38 tries to remove this liability exemption from any host provider which “plays an active role, including by optimising the presentation of the uploaded works or promoting them”.
• Upload monitoring: The obligation is to either “ensure the functioning of agreements concluded with rightholders for the use of their works” or, supposedly if such agreements are not reached, “prevent the availability on their services of works identified by rightholders” through measures “such as the use of effective content recognition technologies”. This contradicts Article 15 of the E-Commerce Directive, which explicitly disallows a “general obligation to monitor the information which [providers] transmit or store”.
• Unclear target: What exactly constitutes “large amounts of works” remains undefined.
• All media types: Nowhere is this obligation limited to certain kinds of works – so it would apply to all kinds of copyrighted media, such as code.

• New obligation with overly broad concept of commercial services: Article 13 of the proposed copyright reform directive introduces new obligations for “information society service providers”, without limiting these obligations to for-profit services. According to European legislation, “Information society service providers” are services “normally provided for remuneration”, however case law has established that this definition also applies to services that regularly ask for donations or that are provided for remuneration by its competitors, even if the particular service in question is provided for free.
• Upload monitoring not limited to copyright infringements: Article 13 goes on to specify that the obligation to install upload monitoring technology applies to platforms hosting “large amounts of works or other subject-matter uploaded by their users”, without requiring that any of these uploads actually constitute copyright infringements. Even though all works uploaded to Wikipedia are either in the public domain or released under a free licence, CC-licenced works are still copyright-protected works. The assumption underlying this obligation is that whenever a user uploads a work without the involvement of a rightholder, there must be a copyright infringement going on, completely ignoring the existence of Creative Commons licences or copyright exceptions. So the large amounts of CC-licenced works uploaded to Wikipedia would require it to put in place upload monitoring technology.

• New exception: Article 3 (1) of the proposed copyright directive establishes a new exception for text and data mining
• But not for you: However, it is limited specifically to “research institutions“ and “for the purposes of scientific research”.

• Active role: Recital 38 of the proposed copyright directive emphasizes that a platform becomes liable for copyright infringement by its users if it “plays an active role, including by optimising the presentation of the uploaded works or promoting them”.
• File lockers like MegaUpload are designed to only host, but not promote or make searchable the content uploaded to them. Since users can only find the uploaded works if they have the exact link, these providers may not qualify as “providing access to the public” to users’ uploads and would therefore not be covered by the upload monitoring obligation in Article 13.