By Caragh Deery - Law Student @ St Hilda's College, Oxford
Copyright is the intellectual property right that protects “works”, such as films, books, sound recordings, and photographs. Copyright provides the owner of the work with a series of exclusive rights and, perhaps most importantly, allows copyright owners to protect against others copying or reproducing their work. The internet poses huge issues for copyright proprietors. The rise of platforms such as YouTube and TikTok mean that infringing content can be uploaded to the internet quickly and easily on a large scale. Infringing content is content that has been used in a way that infringes on an exclusive right of the copyright owner. For example, since films are copyright protected, if John, an ordinary YouTube user, uploads the entire “The Hunger Games” movie onto YouTube, then he will have infringed the copyright in that work.
Where copyright is infringed, the owner of the copyright can bring an action for copyright infringement. If the court finds in favour of the copyright owner, then the defendant (i.e. the person who has infringed the copyright) will be liable to pay damages to the copyright owner. The issue with our “The Hunger Games” example is that John, as an ordinary YouTube user, is probably not worthwhile suing. It might be difficult to track him down, and even if YouTube can track John down, there is no guarantee that he will have sufficient funds to pay damages. This means that copyright owners are incentivised to go after (the much more financially attractive) internet service providers (“ISPs”) instead.
Until recently, Article 14 of the e-Commerce Directive has provided ISPs with “safe harbours”, or protection against actions for copyright infringement. Under the e-Commerce Directive, hosting platforms are not liable for the illegal information stored on their sites at the request of a user or recipient, provided that they did not have actual knowledge of the illegal activity or information. This has not been well-received by copyright industries. There has been significant lobbying against safe harbours, with industries arguing that internet companies are free-riding (i.e. unfairly profiting) on their content and thus need to do more to prevent infringement. Traditional content industries, such as the music industry, are struggling especially to adapt their business models to free advertising-funded platforms such as YouTube. As a result of the widespread availability of copyrighted works on the internet, the revenue normally acquired through licensing the rights to those works is disappearing.
In 2016, the EU Commission acknowledged the changing digital landscape and the subsequent need for contemporary copyright protection. This issue was addressed by Article 17 of the EU Directive on copyright in the Digital Single Market (“the DSM Directive”). Article 17 shifts the burden of liability by making ISPs that host a large amount of user-generated content responsible for taking down that content if it infringes copyright. The implementation deadline for the Directive – i.e. the date by which all Member States of the European Union will have to give effect to its provisions under national law – is not until June 2021. Due to Brexit, the DSM will not be transposed into UK law. Nonetheless, the DSM will radically alter the legal position of ISPs across Europe and has widespread implications.
Article 17 has been hugely controversial. The potential ramifications of its implementation across the EU will be considered in Part II.
A brief overview of the liability of ISPs under UK law and the e-Commerce Directive: https://www.inbrief.co.uk/intellectual-property/internet-service-providers-copyright-illegal-material/
A very recent article that outlines some of the steps ISPs might take to prevent infringement: https://www.express.co.uk/life-style/science-technology/1406930/Virgin-Media-Joins-Sky-Broadband-Block-Ban-Free-Film-Movie-Streaming-Sites
The Digital Single Market Directive: https://eur-lex.europa.eu/eli/dir/2019/790/oj Note: only read ‘Article 17 - Use of protected content by online content-sharing service providers’