In the last edition of ALCS News we reported on the European Parliament’s vote to reject the text of the proposed copyright directive, a decision which led to both celebrations and recriminations. A month later the Parliament voted to approve the text, a decision which has again led to both celebrations and recriminations. What is going on? To understand why the current directive has proved so divisive, we must first look back to the last major European reforms.

Protecting authors rights in the digital age

At the turn of the millennium, the EU adopted legal rules for the ‘digital age’ that granted authors and other copyright holders exclusive rights over the online distribution of their works. The lawmakers had previously established an exemption from liability for service providers when merely facilitating the acts of others wishing to send and receive content online. Technology invariably outpaces the law and these rules could not foresee the emergence of social media platforms, or that the users of such platforms would conclude, not unreasonably, that a video of their dog on a skateboard could only be improved by the addition of their favourite music track. User uploads of recorded music, TV and film grew exponentially, attracting ever larger crowds to the platforms, making them an ideal location for marketing opportunities (estimates place YouTube’s annual advertising revenue at around $8bn).

The value gap between creating content and online revenue

The music industry coined the phrase ‘value gap’ to describe the disparity between the revenues earned by platforms and the sums they pay in copyright fees. The most controversial element of the new directive, Article 13, seeks to redress the balance by making platforms liable for copyright works uploaded by users, unless the platforms have put in place the necessary copyright licensing agreements. The original text of Article 13, which included a requirement on platforms to adopt content recognition technologies, was rejected by the European Parliament following a bellicose lobbying campaign which generated headlines predicting the death of the Internet. The compromise wording subsequently approved by the Parliament reflects a more collegiate approach by encouraging copyright owners and the platforms to “cooperate in good faith” to ensure that unauthorised works are not made available.

Proper remuneration and transparency for authors and rightsholders

The other main area of contention in the directive, Article 11, provides press publishers with a new right to license platforms that aggregate third party news content. It remains to be seen how this might work in practice but if it does, the current text includes an important amendment requiring that authors should share in any new revenues. More significantly for all authors, Articles 14–16 set out measures to improve transparency and fairness in contractual terms and payments. Closest to home, as far as ALCS members are concerned, Article 4 confirms the existing balance within copyright enabling the educational use of materials subject to fair payments for authors and other rightsholders.

Balance has been conspicuously absent from the often jarring media coverage of this debate, making it difficult to decipher the objective intent behind the draft directive. In its own words the Commission’s proposal aims to “…guarantee that authors and rightholders receive a fair share of the value that is generated by the use of their works…”. Straightforward in theory, in practice the next step in the process presents a complex challenge as the Commission, Parliament and Council will now enter trilogue negotiations to arrive at a final text, ahead of a further vote by the Parliament next year.

Given the positive elements for authors within the directive, we hope that its terms will be agreed, notwithstanding a difficult negotiation accompanied, no doubt, by intense media speculation as to the final outcome. Speaking of which, we also hope that the directive will be adopted within a timeframe that enables the UK to participate fully in its implementation.

Written by Caroline Sanderson: author, freelance books journalist and editor of ALCS News. She also chairs events at book festivals and in bookshops throughout the year.