"The vote in the European Parliament represents a major milestone in the development of EU copyright law, which has not been subject to major changes like this since the InfoSoc Directive in 2001", Alastair Shaw, counsel at Hogan Lovells and Morten Petersenn, told Sputnik, commenting on the new copyright law.
He stressed, however, that the directive "leaves a lot of question marks".
Shaw focused on a provision saying "that the Commission must issue guidance on the application of, and specifically the limitation of liability regime".
"This practice-oriented document will be interesting, as it should contain more precise suggestions of technical solutions to comply with the limitation of liability regime, but it will not be binding on the CJEU, leaving uncertainty for both content sharing platforms and rightholders", Shaw pointed out.
Additionally, the lawyer turned the spotlight on the legislation's vague language, suggesting that national courts, and ultimately the CJEU, will have to clarify "what amounts to 'best efforts' in relation to the various obligations on content sharing services" and "which services fall within the definition of an online content sharing service".
New Copyright Law May Trigger Litigation
Ahead of the vote, more than 5 million users signed an online petition trying to prevent the directive from passing, as it could potentially violate their freedom of speech and expression.
"I'm very concerned for the Article 13 that obliges tech companies such as Google and Facebook to be accountable for the distribution of copyrighted material posted on their platform without a proper license", he highlighted.
Paganini explained that the problem is that these platforms "are not ready to properly filter the content". According to him, "this lack of granular control could result in the automatic ban of certain types of content due to the implementation of filters, a circumstance that represents a serious threat to creativity and freedom of expression".
Neil Brown, director at Decoded.Legal, a UK firm specialising in advising, telecoms, and technology, echoed Paganini by saying that one might see "litigation relating to this" launched by digital rights organisations, or affected platforms, rather than individual ends users.
"It is indeed possible that this will be on the basis that the measure is an unlawful interference with Article 11 of the Charter of Fundamental Rights, which establishes a freedom to receive and impart information", he stressed. "By the same token, Article 17 affords protection for intellectual property, so expect strong arguments on both fronts".
New Law May Lead to Blocking 'Entirely Lawful Material'
Previously, some European countries took steps to impose restrictions on US-based companies. In particular, in January 2019, France fined Google €50 million for violating the General Data Protection Regulation (GDPR). Later, Paris introduced a 3 percent digital tax on Google, Amazon, and Facebook.
The question then arises as to whether it will affect US-EU trade relations.
The cyber expert specified that the real problem "is related to the effort that is requested to these firms to implement the necessary measures to prevent the publication of copyrighted content".
However, Paganini believes that tech giants like Google and Facebook "are in some way already prepared [for] the application of the law", adding that "the activities requested [of] them has a cost".
"The first impact is of the overall costs of the companies and, of course, [it has] a side effect on their model of business", he suggested. "Companies are forced to implement new checks, this means supplementary costs to face, and to do this companies have to review their business model in order to generate new revenues. I'm sincerely concerned about who will really sustain the supplementary costs and how. Who will pay [for] the technologies and the resources involved to check hundreds of billions of social media/forum posts and video uploads?"
For his part, Brown highlighted that "the demands of this article [Article 13] will be particularly challenging for smaller platforms, but they are not easy for large platforms either", foreseeing that one "will see the blocking of entirely lawful material as a consequence [of the new directive]".
The views and opinions expressed by the speakers do not necessarily reflect those of Sputnik.