[UPDATE 12 Sept 2018] Copyright Directive has been passed. The exact version still to be clarified (some clauses/amendments rejected, others accepted).[UPDATE 5th July 2018]
EU Parliament rejected the Copyright Reform bill in its current form, putting it up for review in September. This means the legislation will likely be amended to make it less contentious, especially in regards to Article 11 and 13.
Parliament’s plenary voted by 318 votes to 278, with 31 abstentions to reject the negotiating mandate, proposed by the Legal Affairs Committee on 20 June. As a result, Parliament’s position will now be up for debate, amendment, and a vote during the next plenary session, in September.
TL:DR; as with the
previous discussion on Article 13 of the EU's Copyright Directive, Article 11, the so called "link tax" clause, is not so much about taxing links, but obligating governments to act on behalf of Stakeholders in pursuit of their copyright claims and broader enforcement - "
Member States shall provide publishers ... with the rights [outlined] in Article 2...". Again the use of "
shall" is indicative of an order or obligatory mandate, not a voluntary action.
TITLE IV
MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE FOR COPYRIGHT
CHAPTER 1
Rights in publications
Article 11
Protection of press publications concerning digital uses
1.Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications.
2.The rights referred to in paragraph 1 shall leave intact and shall in no way affect any rights provided for in Union law to authors and other rightholders, in respect of the works and other subject-matter incorporated in a press publication. Such rights may not be invoked against those authors and other rightholders and, in particular, may not deprive them of their right to exploit their works and other subject-matter independently from the press publication in which they are incorporated.
3.Articles 5 to 8 of Directive 2001/29/EC and Directive 2012/28/EU shall apply mutatis mutandis in respect of the rights referred to in paragraph 1.
4.The rights referred to in paragraph 1 shall expire 20 years after the publication of the press publication. This term shall be calculated from the first day of January of the year following the date of publication.
Notes on the above:
Para. 1. Essentially the 'link tax' clause although nothing in the paragraph lays this out explicitly so any such outcome would be as a direct consequence of right-holders claims and subsequent State enforcement of those rights/claims (State acting on behalf of vested interests over those of citizens).
With that said, depending on how this is enforced it
could lead to a tax on or license to link, but... to what degree is a link considered subject to copyright when urls are often auto-generated from input that may or may not mean anything beyond being a URL or include descriptive words that could be/would be usefully policed for infringement.
How is content to be treated with respect to Robots.txt, permissive access granted by rights holders to have certain elements of their material index by search engines - if access is granted through Robots doe this also imply consent/limited licence of use. What obligations are services subject to if denied access by robots.txt. Are copyright monitoring agencies exempt from all considerations (e.g.
Mark Monitor).
Para. 2. Copyright as a 'natural' or automatic right recognised of authors, creators et al, should not be affected by the new legislation. Similarly, previsions already afforded to creative works should not be restricted - although not expressly spelled out this should mean that allowances for '
fair use' (and its European equivalent, e.g. '
fair dealings' in the UK) and '
transformative works', should not be affected by the Directive (
fair use and transformative works are allowances or degrees to which infringements may be tolerated within the confines of copyright law, they are not exemptions). However, this would be contingent on Rights-holders pursuit of infringement claims and to what degree they require State intervention on their behalf to police those claims/rights.
Para. 3. Directive 2001/29/EC "
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society". Directive 2012/28/EU "
Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works". "
mutatis mutandis".
Para. 4. It's not clear if the twenty year limitation is exclusive or inclusive of the normal 70+ years afforded under previously established copyright legislation (e.g. Berne Convention on copyright). This might then mean copyright claims in some circumstances being claimed to be 90+ years instead of 20.
Additional Reading-
EU considers hyperlink Copyright-
EU Commission & Restricting YouTube for the Public Good-
MarkMonitor, AWS and site scanning abuse-
Illegal Hate Speech, the EU and Tech-
"Net Neutrality" has been hoodwinked, yet again!-
Two tier Internet - Net Neutrality has been hoodwinked-
Draft Investigatory Powers Bill (as passed "Investigatory Powers Act 2016")
