The closed-door trilogue efforts to finalise the EU Copyright Directive continue. The Presidency of the Council, currently held by Austria, has now circulated among the EU member state governments a new proposal for a compromise between the
differing drafts currently on the table for the controversial Articles 11 and 13.
Under this latest proposal, both upload filters and the link tax would be here to stay -- with some changes for the better, and others for the worse.
Let's recall: In its final position, the European Parliament had tried its utmost to avoid specifically mentioning upload filters, in order to avoid the massive public criticism of that measure. The text they ended up with, however, was even
worse: It would make online platforms inescapably liable for any and all copyright infringement by their users, no matter what action they take. Not even the strictest upload filter in the world could possibly hope to catch 100% of unlicensed
This is what prompted YouTube's latest lobbying efforts in favour of upload filters and against the EP's proposal of inescapable liability. Many have mistaken this as lobbying against Article 13 as a whole -- it is not. In Monday's Financial
Times, YouTube spelled out that they would be quite happy with a law that forces everyone else to build (or, presumably, license from them) what they already have in place: Upload filters like Content ID.
In this latest draft, the Council Presidency sides with YouTube, going back to rather explicitly prescribing upload filters. The Council proposes two alternative options on how to phrase that requirement, but they match in effect:
Platforms are liable for all copyright infringements committed by their users, EXCEPT if they
cooperate with rightholders
by implementing effective and proportionate steps to prevent works they've been informed about from ever going online determining which steps those are must take into account suitable and effective technologies
Under this text, wherever upload filters are possible, they must be implemented: All your uploads will require prior approval by error-prone copyright bots .
On the good side, the Council Presidency seems open to adopting the Parliament's exception for platforms run by small and micro businesses . It also takes on board the EP's better-worded exception for open source code sharing platforms like
On the bad side, Council rejects Parliament's efforts for a stronger complaint mechanism requiring reviews by humans and an independent conflict resolution body. Instead it takes on board the EP's insistence that licenses taken out by a platform
don't even have to necessarily cover uses of these works by the users of that platform. So, for example, even if YouTube takes out a license to show a movie trailer, that license could still prevent you as an individual YouTuber from using that
trailer in your own uploads.
Article 11 Link tax
On the link tax, the Council is mostly sticking to its position: It wants the requirement to license even short snippets of news articles to last for one year after an article's publication, rather than five, as the Parliament proposed.
In a positive development, the Council Presidency adopts the EP's clarification that at least the facts included in news articles as such should not be protected. So a journalist would be allowed to report on what they read in another news
article, in their own words.
Council fails to clearly exclude hyperlinks -- even those that aren't accompanied by snippets from the article. It's not uncommon for the URLs of news articles themselves to include the article's headline. While the Council wants to exclude
insubstantial parts of articles from requiring a license, it's not certain that headlines count as insubstantial. (The Council's clause allowing acts of hyperlinking when they do not constitute communication to the public would not apply to such
cases, since reproducing the headline would in fact constitute such a communication to the public.)
The Council continues to want the right to only apply to EU-based news sources -- which could in effect mean fewer links and listings in search engines, social networks and aggregators for European sites, putting them at a global disadvantage.
However, it also proposes spelling out that news sites may give out free licenses if they so choose -- contrary to the Parliament, which stated that listing an article in a search engine should not be considered sufficient payment for reproducing
snippets from it.
The Satanic Temple in Salem, Massachusetts is suing Netflix and producers Warner Brothers over a statue of the goat-headed deity Baphomet that appears in the TV series Chilling Adventures of Sabrina .
The temple is claiming that Netflix and Warners are violating the copyright and trademark of the temple's own Baphomet statue, which it built several years ago.
Historically, the androgynous deity has been depicted with a goat's head on a female body, but The Satanic Temple created this statue with Baphomet having a male chest an idea that was picked up by Netflix.
The Temple is seeking damages of at least $50 million for copyright infringement, trademark violation and injury to business reputation. In the Sabrina storyline, the use of the statue as the central focal point of the school associated with
evil, cannibalism and possibly murder is injurious to TST's business, the Temple says in its suit.
Once states totalling 35% of the EU's population oppose the new Copyright Directive, they can form a "blocking minority" and kill it or cause it to be substantially refactored. With the Italians opposing the Directive because of its
draconian new internet rules (rules introduced at the last moment, which have been hugely controversial), the reputed opponents of the Directive have now crossed the 35% threshold, thanks to Germany, Finland, the Netherlands, Slovenia, Belgium
Unfortunately, the opponents of Article 11 (the "link tax") and Article 13 (the copyright filters) are not united on their opposition -- they have different ideas about what they would like to see done with these provisions. If they
pull together, that could be the end of these provisions.
If you're a European
this form will let you contact your MEP quickly and painlessly and let them know how you feel about the proposals.
That's where matters stand now: a growing set of countries who think copyright filters and link taxes go too far, but no agreement yet on rejecting or fixing them.
The trilogues are not a process designed to resolve such large rifts when both the EU states and the parliament are so deeply divided.
What happens now depends entirely on how the members states decide to go forward: and how hard they push for real reform of Articles 13 and 11. The balance in that discussion has changed, because Italy changed its position. Italy changed its
position because Italians spoke up. If you reach out to your countries' ministry in charge of copyright, and tell them that these Articles are a concern to you, they'll start paying attention too. And we'll have a chance to stop this terrible
directive from becoming terrible law across Europe.