The Directive of the European Parliament and of the Council on copyright in the Digital Single Market (ACTA 2).

« News 11 april 2019

A moment after information about the adoption of the directive appeared, an avalanche of comments swept through the media. Some were happy to point out that the directive would ensure proper protection for the authors and allow them to be remunerated for disseminating their works on the Internet, others argued that this is another step towards censorship and the end of the freedom of the Internet.

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What is the purpose of the directive?

The purpose of the directive is to ensure that both authors and right-holders receive the due part of the value generated by using their works and other protected subject-matter. As we read in the justification of the proposal for a directive, as a result of the development of digital technologies, the emergence of new business models and the increased role of the Internet, there has been a need to regulate these rights.

Where did the controversy come from?

In the public space, mainly among Internet users, two provisions of the directive were particularly controversial.

The first of these, commonly called the linking tax, is to guarantee the protection of press publications in the field of digital use. Article 11 (now Article 15) introduces additional related rights for press publishers, i.e. it allows publishers to claim for remuneration for using their online publications. This change strongly affects the activity of online platforms, whose task is to collect and share content created by others. For example, when you open the Google browser, selected press content appears, which when you click on the content, redirects the user to the website they come from (this function is called Google News).

The second one, constituting for the opponents of the reform, the main argument for the threat of Internet freedom concerns Article 13 (now Article 17) of the directive. This provision imposes on service providers who store and provide access to a large number of works and other subjects protected by copyright law, the obligation to monitor the content posted on the Internet and the use of mechanisms blocking the sharing by users of data that infringe copyright. This provision applies mainly to large entities that provide content, i.e. Facebook, Google, YouTube or Chomikuj.pl.

Is Internet freedom at risk?

Firstly, it should be stressed that the directive (as opposed to the regulation) must be implemented by the Member States. This means that Member States are free to choose the shape and method of implementation of the new legislation, obviously taking into account the intended objective of the directive.

Secondly, the provisions of the directive impose main obligations on service providers, while to a lesser extent affect the activities of Internet users themselves.

Importantly, the directive does not apply to such collections as, for example, online encyclopedias, educational and scientific archives and sales platforms.

Obligations resulting from the directive will therefore be subject to portals whose main purpose is to collect and publicly make access to a large amount of content protected by copyright.

What do the provisions of the directive mean for authors and Internet users?

The introduction of provisions of the directive into force should positively affect the interests of authors. They will receive a guarantee that their rights will be enforced and that they will be remunerated for the content they make available to them.

However, it is difficult to unequivocally assess the effects of the directive on Internet users.

It is certainly worth noting that all previously known forms of fair use will continue to apply. Rights granted to press publishers in the form of so-called linking tax does not apply to private and non-commercial means by which Internet users use press releases. They also do not include linking, single words and very short sections.

In addition, the portal user should be able to file a complaint and claim if the content he shares is blocked. For now, it is not known in some way they will be introduced, and above all, how effective they will be.

In conclusion, attempting to regulate the issue of rewarding authors for making their work available in the digital sphere should be assessed as a positive phenomenon. However, each idea may be misinterpreted in its assumptions, therefore it is worth to refrain from the final assessment of the directive until its provisions are implemented in the national legal order.

March 28th, 2019, attorney-at-law Magdalena Piechowicz

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