5 Key Points for Legal From the EU's Controversial Digital Copyright Directive
The EU's attempt to create copyright laws for the internet age has companies and technologists panicking. Here's what law departments should take away.
September 17, 2018 at 01:00 AM
4 minute read
Earlier this week, the European Parliament passed a new draft of the European Union digital copyright directive, legislation that has been championed by content creators and publishers, but decried by tech behemoths.
The directive will have to go through more committee discussions and another parliamentary vote before it can become law, but this doesn't mean the polarizing legislation isn't already making in-house counsel nervous.
Attention to the latest draft of the directive has been focused on Articles 11 and 13. Article 11 would give online publishers direct ownership of copyright in their publications. The copyright owners would then be able to ask for payment when their content is shared around the web through services such as Google News and Reddit. Article 13, which has been called the “upload filter,” says that online platforms could be held liable when a user uploads infringing content.
Here are five takeaways for in-house lawyers from the latest iteration of the directive:
1. Country by country. The new copyright rules are being negotiated on an EU-wide basis, but if the directive passes (as many suspect it might in 2019) it will not be “directly effective” in any EU state, according to Tom Broster, an IP lawyer at U.K. firm Briffa Legal. Broster wrote in an email that “each member state is allowed to interpret the directive as its sees fit and implement the directive through its own national laws, provided that certain outcomes are achieved.”
2. Winners and losers. Tech companies have complained a great deal about the directive. And some internet users and privacy advocates are already bemoaning the death of memes if it goes into place. But who's going to win? Copyright owners will be the largest beneficiaries of the directive, according to Broster. He said he believes that ”copyright owners stand to benefit from enhanced protection and enforcement mechanisms, with the standard expected of service providers in policing infringement being higher.”
3. On balance though… Article 11 of the draft directive may come at a cost to companies, however, those large tech companies such as Google and Facebook may also still be able to profit. The revenue generated for larger companies will could outweigh the license fees that will need to be paid. “In other words, larger companies still stand to profit from linking to others' publications, just maybe not as much—and individuals stand to profit from receiving royalties from these larger companies. How payment will be ensured, however, is a different matter entirely,” Broster said.
4. New rights owners. Ron Moscona, a partner at Dorsey & Whitney in its London office, said in an email that publishers will have their own limited protection periods for five years so they can reap the benefits of dissemination of their publications by third parties online. “The revised text of the directive emphasises in this context that copyright protection will not prevent the free use of hyperlinks that lead to protected content published online,” he wrote. “However, the new rights of publishers may force search engines and other digital players to pay royalties, for example, when published content comes up in search results.”
5. Compliance mission: Impossible? Article 13 of the draft is written to make sure service providers and platforms work with copyright owners to guarantee copyrights are not infringed. But how can companies, especially bigger ones with tons of content, filter out content what could be in violation? It's hard to say. ”Service providers reviewing every piece of content uploaded to a website is likely to be time consuming, costly and, in some cases, impossible,” Broster said. “This potentially leaves service providers open to liability in many cases, but also does more to protect the interests of copyright owners.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTrending Stories
- 1Call for Nominations: Elite Trial Lawyers 2025
- 2Senate Judiciary Dems Release Report on Supreme Court Ethics
- 3Senate Confirms Last 2 of Biden's California Judicial Nominees
- 4Morrison & Foerster Doles Out Year-End and Special Bonuses, Raises Base Compensation for Associates
- 5Tom Girardi to Surrender to Federal Authorities on Jan. 7
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250