Journal of Intellectual Property Law


Since its proposal in 2016, the Directive of the European Parliament and of the Council on Copyright in the Digital Single Market ("the Directive" or "the Copyright Directive") has been controversial. While the Directive was rooted in good intentions, intended to "improv[e] the bargaining position ... and the control rightsholders have on the use of their copyright-protected content" in the digital space,' critics loudly proclaimed it as the death of the internet as we know it. Notable architects and pioneers of the Internet, including Tim Berners- Lee (inventor of the World Wide Web) and Jimmy Wales (founder of Wikipedia), penned a letter to European Parliament addressing some of their concerns. They particularly highlighted the dangers posed from Article 13 of the Directive. Article 13, at the time, suggested that websites bear the responsibility of automatically filtering all of the content their users uploaded. Critics like Tim Berners-Lee posited that this would not only contribute to the growing atmosphere of surveillance on the web, but it would also place too large a burden on the smaller internet platforms - to the advantage of larger companies like Facebook, Google, and YouTube.

However, criticism of the Copyright Directive did not stop with Article 13. Commentators also noted that Article 11 would have similar negative effects, but on the spread of news and information around the web. Article 11 would require online platforms to pay a "link tax" to publishers of information such as news websites. This "link tax" had particular opposition from groups like Wikipedia and GitHub, which rely on users to share not just news, but academic information on their sites. While Article 11 was modified to provide that private, non-commercial internet users would be exempt from such a tax, the ambiguous language of Article 11, along with a failing history of similar implementations across Europe, lead some to believe it could result in the manipulation of access to news or even censorship.

In response to these and other criticisms, the European Parliament has been working continuously on amendments and revisions, hoping to calm fears among critics and rally votes among MEPs. A number of these amendments were approved on September 12, 2018. The next phase will be a series of dialogues between the European Parliament, the European Commission, and member states to hammer down the details before the Directive comes up for final vote in the spring of 2019. Part II of this note will discuss Articles 11 and 13, as well as their amendments; the Articles' effects on access to information in Europe's digital space; and the Articles' potential inconsistency with European concepts of fundamental rights. Part III will demonstrate that while the European Union is attempting to establish stronger property rights for creators, the steps it has taken pose great danger to the concepts of decentralization, access to information, and freedom of speech - all of which are foundational to the intemet's origins. Part IV will conclude by arguing that Articles 11 and 13 ultimately disserve the Directive's goals of stimulating the growth and creativity of digital content.