In January, the Government confirmed that the highly contentious Article 17 (previously Article 13) of the new EU Copyright Directive would not not be implemented in the UK following its departure from the EU.
Below, we have outlined what Article 17 is, what it seeks to achieve and why has the UK has decided to not implement it.
What is Article 17?
Article 17 was approved by the Member States of the EU (including the UK) in April 2019.
It relates to “protected works or other protected subject-matter uploaded by its users” and seeks to render online content-sharing service providers (such as YouTube, Facebook, and Google) liable for copyright infringements perpetrated through videos, music, pictures, etc., being uploaded through their services, by users of those services.
The Article requires that service providers seek authorisation from right holders, for example, by way of a licence, before protected works are uploaded onto their sites. Without such authorisation, the service provider would be liable for copyright infringement unless it could show that:
- It made “best efforts” to obtain permission from the right holder;
- Where right holders have specified works that should not be made available on a service provider’s site, made “best efforts” to ensure that those works were not made available; and
- Acted quickly and efficiently in removing any infringing material, once it was made aware of its existence.
The Article applies to all service provider companies whose services have been available in the EU for at least three years and have a turnover of at least €10 million (£8.8 million) per annum.
Acts currently permitted by EU (and UK) law in relation to copyright such as criticism, review, and parody will not be affected by the implementation of the Directive.
What does Article 17 seek to achieve?
The aim of this Directive is to allow owners of works protected by copyright to better control that work. It puts the onus on service providers to remove the infringing material, as opposed to right holders enforcing their rights themselves.
Owners of works protected by copyright are likely to be pleased by the obligations that Article 17 imposes as it will potentially give them a new cause of action against large companies when their copyright has been infringed. Whilst right holders would always have had a cause of action against the person who uploaded the protected work, these are likely to be private individuals whose net worth would not compare to that of Google or YouTube.
When the Directive was voted in last year, companies such as Google criticised it claiming that Article 17 would
“harm Europe’s creative and digital industries“
“change the web as we know it“.
UK’s decision to not introduce Article 17
The UK has confirmed that it will not implement the new Copyright Directive. The remaining EU Member States will be required to bring the Directive into force by 7th June 2021.
Whilst the UK Government has decided not to implement the new Directive, it has stated that it supports the Directive’s overall aims and will possibly look to implement similar regulations in the near future.
For the time being, within the UK at least, content sharing service providers will no doubt continue to rely on the provisions of The Electronic Commerce (EC Directive) Regulations 2002, so as to limit their liability for any acts perpetrated by users of their services, to the fullest extent possible.
Kristina Ford is a Trainee Solicitor at Nelsons.
If you would like any advice in relation to the subjects discussed in this article, please contact Kristina or another member of our Dispute Resolution team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.