Directive on Copyright in the Digital Single Market (EU Copyright Directive)

The Directive on Copyright in the Digital Single Market is a controversial set of laws passed by the European Union (EU) in 2019. The legislation was designed to grant additional power to copyright holders in the Internet age and was designed to curb recurring instances of online copyright infringement.

Many aspects of the EU copyright directive were harshly criticized by activists and politicians. The most prominently criticized parts of the act were articles 15 and 17. Article 15, commonly called the “link tax,” states that copyright holders must be compensated should portions of their work be reproduced within a web page. Portions of articles are often shown as previews, recommendations, or windows on other web pages. Critics of the EU copyright directive argued that this could force websites to compensate copyright holders when automated algorithms provide previews to users, or link content to users.

Article 17 makes content providers, such as YouTube, Facebook, and other social media websites, responsible for content uploaded by their users. This means that if a user uploads content that violates copyright law, the content provider would also be liable. This aspect of the law could potentially force content providers to institute costly filtering software to try to intercept copyrighted content as it is uploaded. It may also force content providers to behave differently when providing content to EU nations, or to pull their services from the EU.

Background

The first copyright laws can be traced back to England during the sixteenth century. At that time, the British monarchy had the power of “copy right,” meaning they could confiscate any books that were not approved by the government. However, by the end of the seventeenth century, this power had become a monopoly on printed books and maps within Britain. In 1710, Parliament broke this monopoly by passing the Statue of Anne. The Statute of Anne created the first fixed terms for copyrights, keeping documents’ rights secured to their owners for a set period of time instead of an indefinite period.

In the United States, copyright was originally a type of legislation unregulated by the federal government. For this reason, individual states were permitted to make and enforce their own copyright legislation. In 1783, Connecticut passed the first US copyright legislation, which was modeled after England’s laws. Soon afterward, the US Congress passed the Copyright Act of 1790. This act gave authors throughout the United States complete control over their works for fourteen years after the original date of publication. It also allowed them the option to renew their copyright for an additional fourteen years. Legislators hoped that this period of author control would help encourage scientists and writers to produce and publish new works.

Copyright law in the United States and the rest of the world was revised repeatedly during the following centuries. In 1831, the first term of copyright was revised to twenty-eight years, though the law still allowed for a fourteen-year extension. In 1841, during the case Folsom v. Marsh, a Massachusetts court established the beginnings of fair use doctrine. Under this doctrine, it is sometimes permissible for one author to utilize another author’s work without permission. However, the value of the original must not be diminished by such use.

In 1886, the Berne Convention established mutual recognition for copyright across European nations. However, the United States did not agree to such conditions. In 1909, the US Copyright Act was revised to include all forms of authorship, and the renewal term was extended to twenty-eight years. In 1976, the United States revised its copyright law again, this time intending to bring its laws in accordance with international standards. It increased the term of copyright protection to the life of the author plus fifty additional years, and clearly defined fair use, copyright registration, and copyright infringement. It also extended copyright protection to unpublished works. In 1988, the United States officially joined the Berne Convention, recognizing copyrights across twenty-four countries.

Overview

The Internet age drastically changed the impact of copyright laws. The ability to quickly and easily share information across the world made enforcing creators’ rights extremely difficult. Artistic media, such as songs, photographs, and videos, could easily be shared with countless people without its creators’ consent. Numerous lawsuits were filed against individuals violating copyright law, often issuing harsh monetary penalties to those who uploaded content to the Internet against the creators’ wishes. However, once the media was uploaded to the Internet, it proved extremely difficult to remove or control.

In an effort to help remedy the situation and to help return some control to copyright holders and developers, the European Union began to develop the Directive on Copyright in the Digital Single Market. The EU copyright directive was a set of sweeping reforms to digital copyright law within the twenty-eight member nations of the EU. It intended to create an online environment in which the copyright claims of individual content holders could be easily viewed and enforced. It also sought to provide clear paths for copyright holders to petition to have illegal redistribution of their content removed from hosts. For those copyright holders who had been wronged, the directive provided a means of compensation.

The copyright directive was debated, refined, and revised over several years. It was passed by the EU in 2019. At that point, member states of the EU were required to pass similar laws within their own borders. The new laws were widely praised by copyright holders and content developers. However, they were protested by many activists and politicians.

Several parts of the EU copyright directive were considered controversial. Article 15 of the directive, more commonly referred to as the “link-tax,” requires member states of the EU to adhere to numerous stipulations. These include providing publishers of established press publications with the right to authorize the use of their publications by other online operators. It also provided both publishers and authors with the right and ability to receive an appropriate share of the revenue generated by online operators utilizing their publications.

Many politicians, activists, and technology firms have expressed worry that Article 15 will stop web services from linking to relevant articles, providing previews of articles, or harshly penalize individual users attempting to share content. However, the final version of Article 15 specifically exempts private and non-commercial uses of press publications, hyperlinking, or the use of “individual words” or “very short extracts” of publications.

Article 17, another controversial part of the EU copyright directive, covers the use of protected content by online content-sharing services. Popular content-sharing services include Facebook, YouTube, X (formerly Twitter), and other social media services. Under this directive, such content-sharing services become responsible for the actions of its users. This means that should users upload copyrighted content without the permission of the legal copyright holder, the distribution service may be held responsible.

Under Article 17, content providers must specifically obtain the license to utilize copyrighted content before they can make copyrighted content available through their service. To obey such a measure, critics argue that content providers must intensely police their services for the presence of copyrighted content. Earlier drafts of Article 17 required content providers to develop a complex upload filter to stop any copyrighted content from being uploaded to the service. Though such a provision was dropped from the final version of the directive, many critics argue that developing such a filter is the only way content providers can avoid violating the new laws. Content developers argue that creating such a filter may not be possible and would be prohibitively difficult and expensive.

Because of the worldwide nature of the Internet, most content providers targeted by Article 17 operate in countries outside the borders of the EU. The provisions created by the copyright directive are much stricter than those in many other parts of the world. This would force content developers to uphold those standards on a global scale, uniquely tailor their services within the EU, or to stop offering their services within the EU.

Articles 3 and 4 of the agreement provide exceptions for data mining. In this context, copyright is not violated during data mining, as long as the data mining is conducted legally and on lawfully accessible works. No provisions on the length of time that such data may be kept were created by the copyright directive. Some activists and politicians protested that such a provision would continue to encourage data mining, further reducing the privacy of the average citizen of the EU.

The EU Copyright Directive was officially implemented in June 2021, though not all EU member nations adopted the rule by this date, with Poland being the final member to adopt the directive in September 2024. Poland challenged the legality of the directive and sought amendments from the Court of Justice of the EU to protect free speech rights. However, this case was dismissed. The directive’s impact was wide-reaching. Publishers like Penguin Random House and most tech companies updated their copyright pages to prevent artificial intelligence models from using protected intellectual property for machine learning.

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