European Parliament approves draft Directive on Copyright

What is the current status of the draft Directive on Copyright in the Digital Single Market?

The background
In 2016 the European Parliament proposed legislation in an attempt to modernise copyright laws to keep up with the digital age.

The draft Directive contains two particularly controversial provisions:

• Article 11, referred to as the "press publishers' right", or "link tax", which would allow publishing groups (eg newspapers) to charge online content sharing service providers and platforms a fee for a licence to link to their content; and

• Article 13, which essentially reverses the established legal precedent that users, rather than online content sharing service providers, are responsible for content published online, shifting the burden to the platforms to ensure that the content they publish does not infringe copyright.

In July 2018 the European Parliament rejected the draft legislation, meaning that the draft Directive was once again up for debate and amendment.

As a result of the controversy surrounding Articles 11 and 13, the proposed Digital Copyright Directive was redrafted and Articles 11 and 13 (amongst others) were amended. The key effects of such amendments are that:

• draft Article 11 now includes additional wording which clarifies that the publishers' right should not restrict legitimate, private, non-commercial use of press publications by individual users. The amendments also make clear that the right will not extend to mere hyperlinks which are accompanied by individual words;
• draft Article 13 no longer applies to certain types of entities such as open source software developing platforms. The amendments also clarify that co-operation between platforms and rights holders should not restrict the use or availability of non-infringing works, such as parody, on online platforms.

The development
On 12 September 2018 the amended draft Directive was reconsidered by the European Parliament and MEPs voted in favour of the amendments. The draft Directive still has some way to go before being passed (and even then it remains to be seen how member states will implement the Directive), but it is one step closer to final approval.

What happens next?
The next stage is for the European Commission, European Council and European Parliament to informally negotiate on the current draft of the directive and attempt to reach agreement on the final wording of the text, which if agreed, will be passed back to the European Parliament in January 2019 for a final vote.

If the Directive is passed it must then be transposed into domestic law by each member state within 2 years. The extent to which the effects of the Directive are felt in the UK will therefore ultimately depend upon the Brexit deal reached in March 2019.

Practical tips
Keep watching! There is still a way to go before the Directive is implemented, if at all, and with European Parliament elections expected to be held in May 2019, MEPs will be paying attention to the voices of their constituents.