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Author Topic: Article 11 of the EU Copyright Directive (link tax)  (Read 594 times)

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Offline kat

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Article 11 of the EU Copyright Directive (link tax)
« on: June 19, 2018, 06:10:20 PM »

[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.
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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.

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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")

Offline ratty redemption

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #1 on: June 19, 2018, 06:40:23 PM »
thanks for interpreting that for us kat.

Offline kat

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #2 on: June 19, 2018, 10:12:51 PM »
Aye... the language is far too open so what they're doing is allowing rights holder a de facto carte blanc over the criteria that establishes what's okay or not... this even make the likes of Google, Facebook et al subject to outside authority. That's a factual interpretation of what's being presented, not a hyperbolic interpretation or conspiracy. As for the consequences, what that might mean and how it'll be enacted, is anyone's guess at this point, it may very well be down to people being taken to court to establish exactly where the lines are to be drawn.

With that said an interesting and mildly conspiratorial aspect of this is the deafening silence from the same parties who clamored and climbed all over the Net Neutrality, SOPA, CISPA, TPP, PIPA, ACTA, CPBR etc. debates. This new EU Directive, whilst seemingly relating specifically to copyright, does exactly the same thing, requires service providers (Google, Facebook etal) police their networks - different reasons, same outcome.

Offline ratty redemption

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #3 on: June 19, 2018, 10:53:16 PM »
understood and agreed.

Offline kat

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #4 on: June 20, 2018, 12:33:00 AM »
There is some debate over links ("hyperlinks") being subject to the Directive in some quarters where paragraph (33) is quoted as rationale;
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... This protection does not extend to acts of hyperlinking which do not constitute communication to the public.
And paragraph (34);
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...the rights granted to the publishers of press publications… should also be subject to the same provisions and limitations … including the exception on quotation for the purposes such as criticism or review.
Unfortunately these bits of text are from the Directives preamble not Article defined clauses, so have little (if anything) effect beyond laying out context - the presence of this type of preamble does not preclude the item of discussion from being subject to the Directive because the clauses themselves do not make that distinction.

Offline ratty redemption

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #5 on: June 20, 2018, 01:17:23 AM »
interesting, keep us updated please.

Offline kat

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #6 on: June 20, 2018, 09:49:03 PM »
Article 11 as amended and passed - content marked below in bold and underlined indicate amendments to the original text (full text/source);

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Art. 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 so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.

1a. The rights referred to in paragraph 1 shall not prevent legitimate private and non-commercial use of press publications by individual users.

2. The rights referred to in paragraph 1shall 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.

2a. The rights referred to in paragraph 1 shall not extend to acts of hyperlinking.

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 5 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. The right referred to in paragraph 1 shall not apply with retroactive effect.

4a. Member States shall ensure that authors, receive an appropriate share of the additional revenues press publishers receive for the use of a press publication by information society service providers.

Offline ratty redemption

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #7 on: June 20, 2018, 10:36:39 PM »
can you summarize that for us? i'm not very good at reading legal jargon.

Offline kat

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #8 on: June 20, 2018, 11:29:14 PM »
Yes, once the thoughts have formulated after the text has been through the EU Bureaucrat 2 Normie translator, its a little over-worked right now ;o).

Offline ratty redemption

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #9 on: June 20, 2018, 11:47:29 PM »
ok, he he. same goes for the article 13 please.

Offline kat

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #10 on: June 23, 2018, 08:23:37 PM »
1. changes here appears to reframe Article 11 more specifically to the activities of service providers, Google, Bing, Facebook and so on, in terms of their distributing copyright content (as opposed to content Users post to their feeds) else they are liable for revenue share similar to such schemes already in play for advertising (see previous post on this for greater context and much more detail) - this might be why Facebook recent removed the ‘suggested news feed’, a feature of FB origin, which would make them liable. This clarification should also exclude private citizens from effects of the clause.

1a. new paragraph emphasises the above point with an ‘exemption’ from liability of sorts, without using the word or language, for private citizens and individuals. This should make the memes and other User posted viral content safe, although likely liable where commercial exploitation is involved – this seems in line with current ‘fair use’ principles.

2. no change.

2a. new paragraph to address concerns with “hyperlinking”. In theory this should mean "any means used to ‘link’ or connect between content" rather than what hyperlinking normally means, text. This should mean linking in of itself is not cause for liability no matter where, how, why or what (this might also mean commercial exploitation is possible?).

3. no change.

4. duration for liability is reduced from twenty to five years (although again it’s not clear if this is exclusive of current 70+ years for copyright generally). Liability is also not retroactive – this should prevent a punitive approach by rights holders to claim 'lost' revenues from past misuse (which would also make lawful acts of the past, unlawful).

4a. new paragraph that clarifies paragraph 2 somewhat, making Governments liable for ensuring the Article 11 is enforced with regards to claims made and compensation had – this may mean rights holders lobbying Governments to act on claims of misappropriation(?) instead of infringing parties (a claim is presented to the Government not the party infringing). This appears counter/to conflict with current legislation in that misappropriations are supposed to be issued against infringing parties and then handled through the Courts, paragraph 4a seems to imply this can be bypassed and Governments can be lobbied directly.

Offline ratty redemption

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #11 on: June 23, 2018, 08:45:50 PM »
i think i understand this better now. thanks for translating it kat. have you had time to study to the updates to article 13?

Offline kat

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Re: Article 11 of the EU Copyright Directive (link tax)
« Reply #12 on: July 05, 2018, 08:47:05 PM »
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.
Quote
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.

 

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