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How Will EU Copyright Law Change Internet? Prof EXPLAINS

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Copyright - Sputnik International
More than 300 MPs voted to pass the European copyright directive, which makes websites that host user-generated content responsible for preventing copyrighted material from being uploaded without permission and introduces a penalty for their users’ copyright infringement.

European lawmakers have approved sweeping changes to copyright enforcement across Europe.

The document also includes new requirements aimed at making internet giants like Google pay licensing fees to publications for using their work in services like Google News. According to the authors of the new legislation, it is intended to prevent multinational companies from exploiting the work of others without paying for it.

Sputnik has discussed the changes to copyright enforcement in Europe with Dr Eleonora Rosati, associate professor of intellectual property law at the University of Southampton.

Sputnik: To what extent is this copyright law going to change the Internet as we know it, in any case in the European Internet space?

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Eleonora Rosati: I guess that the answer will depend a lot on how individual member states transposition this directive. In fact, this directive will need to be implemented at the national level and then our courts will interpret these new rules. For the moment, the latest version of the directive clarifies that, as far as the provision that you were discussing before is concerned, this is not a radical change in the law, it is a clarification of how the law is already. So, that is the view taken by the EU, but again, whether that is true depends on the transposition and then the application at the judicial level.

Sputnik: Definitely. Critics are already saying that these new rules are actually violating Internet freedom. How justified do you think this assessment is?

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Eleonora Rosati: Certainly, the establishment of liability on the side of platforms would likely induce them to be more cautious and careful about what type of content they allow their users to share online. But what is present in the directive compared to the initial version is a clear statement that users will have the right to make parodies available, quotations, criticism or reviews; so, in this sense, the text of the law says that this will be a right of users and this might be quite a significant change, because until now all these activities have been allowed as exceptions to copyright rather than rights and have been optional at the level of individual member states.

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So, in a sense, there might be room for a greater control on the side of users on how they exert fundamental freedoms, such as the freedom of expression.

Sputnik: Tell us now, as normal citizens, Internet users, how is life going to change? I mean, what are the primary things that we now are going to have to think about before posting anything, or is there not going to be a significant change, now that the burden has been put on the platforms?

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Eleonora Rosati: For users things are unlikely to change dramatically, because if a platform obtains a license from the rights holder, as is required now by this new law, this license will also cover users. So, in a sense, for users there might be diminished risk of liability, because at the moment users are directly responsible for the content that they upload, that is made clear also by the terms of service of the platforms; but with this new law in place, users might see, on the one hand, their position strengthened from a legal standpoint. But, of course, on the other hand, there is a risk that platforms will want to be cautious and they might block the uploading of content that instead is now available for fear that that content might be unlicensed and therefore infringing.

Sputnik: Another thing that you have to take into consideration is that when you have laws that make platforms responsible, doesn't this have a tendency to support the giants, the monsters, Google and the big guys? Because smaller companies, to what extent are they really able to pay out the fines, to provide all of this screening to make sure that they are not in violation, first of all, and to pay fines and be responsible if they are found to be in violation? Isn't this just driving the market away from a smaller platform and sending it all to the big guys?

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Eleonora Rosati: The concern that you are highlighting has been a central one throughout the discussion of the reform. There has been a concern that this new law, instead of enabling the appearance of new players on the market will, indeed, reinforce the position of the incumbents. On the one hand, this aspect has been addressed by introducing mitigation measures to the text of the directive; so, younger and smaller companies might be able to be exempted from the application of these rules for a certain period, insofar as certain conditions are satisfied. On the other hand, there is something that might require closer scrutiny in the text of the directive, because platforms that have made best efforts to obtain a license but have not been able to secure it, will need to make best efforts to prevent the availability of unlicensed content on the platform; how that is going to be applied in practice remains to be seen.

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According to some critics, this would require implementing upload filters, and if this is true, the European Union has somewhat denied that would be the case, but one will need to take into account what economic measures a platform will need to implement and what price they will need to pay in order to implement the technologies that would allow achieving these results.

Sputnik: Let's talk about the directives themselves. Some people have said that they are very ambiguous in their wording; how would you assess the language? You have said that there would be a need for the courts to interpret it, this is a normal practice, but to what extent are you happy with the way it's currently worded? Do you think that there is enough clarity in the documentation already?

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Eleonora Rosati: As compared to the initial version of the directive, the latest version that was adopted yesterday is much clearer, because it is much more detailed. But, of course, there remain ambiguities in certain key concepts of the directive. For instance, this value gap provision, which is now Article 17, formally Article 13, speaks extensively of best efforts; Article 11, that is the press publishers' rights, speaks of small excerpts from newspaper articles. So, these are concepts that are vague per se, so we will need to wait [and see] how these provisions are transposed at the national level and then it is very likely that litigation on these points will arise to clarify what is meant by these concepts.

The views expressed in this article are solely those of Dr Eleonora Rosati and do not necessarily reflect the official position of Sputnik.

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