EU law on controversial upload filter and link tax is final

Negotiators from the European Council, the European Parliament and the European Commission reached an agreement behind closed doors on Wednesday on the final text of the Copyright Directive, including the controversial Articles 11 and 13.

After years of tinkering with the European copyright directive, the text is now final, reports Julia Reda, MEP, politician from the German Pirate Party and critic of the proposal. The exact final text will follow, but according to Reda the result is the result of the compromise that Germany and France reached last week.

For Article 13, according to Reda, this means that internet services must do their best to obtain early licenses for content that users may upload and that sites must prevent users from uploading copyrighted work that has been marked as such by the rightholders.

Although the term filter is not in the text, it is believed that sites can do little else than install upload filters, with all the costs and margins of error that entails. Small and new sites are excluded from this obligation. The compromise between Germany and France referred to services that have been available for less than three years, with an annual turnover of less than EUR 10 million and with fewer than 5 million unique visitors per month, but it is not clear whether the final text has changed .

If, according to the court, a service has done too little to prevent the infringement, it is liable as if it were the infringer itself, which, according to the MEP, will lead to services filtering in such a way that freedom of expression can be compromised.

Article 11 has been labeled a link tax by critics. The text prescribes that copying texts from publishers, such as news items, requires a license, unless it concerns a few words or very short snippets. It is unclear what ‘very short’ is, so it cannot be ruled out that even short copied texts with hyperlinks will fall under the license obligation. There are no exceptions to this article so probably any site that makes money will have to stick to it.

The next step is for the member states to vote on the directive in the European Council. To reject it, 13 Member States or a number of Member States representing 35% of the EU would have to vote against, which is unlikely given that last time only eight Member States, representing 27% of the EU, voted against. The European Parliament can also vote down or amend the proposal. This vote will take place between 25 and 28 March or between 15 and 18 April.