LittleLaw Interviews: Assistant Professor Bernd Justin Jütte on the New EU Copyright Directive

May 7, 2019

6 min read

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Recently, LittleLaw published a report on the Directive on Copyright in the Digital Single Market, also known as the EU Copyright Directive (for a refresher, check it out here). In particular, we identified two provisions that are of importance: Article 15 and Article 17 (numbered 11 and 13 in previous drafts). Article 15 was dubbed the ‘link tax’ and required online platforms to seek permission before posting snippets of news content on their sites. Article 17 states that the platforms themselves (rather than just the user) will now be liable if infringing content is found on their sites.

Following the implementation of the directive, LittleLaw sat down with Assistant Professor Bernd Justin Jütte (an expert in European copyright law) to get an expert’s views on the matter.

Q: Why have Articles 15 and 17 caused so much controversy?

PJ: Article 15 introduces a new right, without empirical evidence that the right can achieve the purpose for which it is introduced. Publishers of press publication will receive an exclusive right for their content for online uses. The two times such a right has been introduced in Germany and Spain it did not work very well.

Article 17 has caused a lot of concern as it has been perceived as creating an obligation to filter and monitor content on online platforms. But, this might not be as big a problem as it is perhaps made out to be. Looking at the final text of the Directive, it more or less says that online content-sharing service providers that host infringing content are performing potentially infringing acts in relation to content uploaded by their users. Therefore, one of their obligations is to undertake reasonable measures to prevent illegal content from being uploaded. However, it now explicitly says this should not result in a general monitoring obligation.

The political process that led to the adoption of the Directive was further accompanied by an unprecedented level of public attention, protests and unfortunate statements by political actors. A topic that seems to be at the heart of many Europeans could have been dealt with more professionally.

Q: Talking of complications, is it likely that the UK will adopt the new Directive after Brexit?

PJ: If the UK leaves the EU before the deadline for transposition passes, it is under no obligation to implement the directive into national law. But, given that the UK has already implemented the Information Society Directive, the DSM Directives’ predecessor from 2001, I think it is likely that the UK will adopt most of its core provisions. Personally, I think the UK would be well advised to implement at least some of the mechanisms proposed by the Directive. If the UK wants to cooperate with the European market for digital content that would be a smart move.

Q: You spoke about the obligation of platforms being that they need to take reasonable measures to ensure infringing content is not uploaded onto their sites. If this isn’t a general filtering obligation, as you said earlier, then what are the measures that platforms need to take?

PJ: There are a number of mechanisms already in place. The most prominent one is the “notice and take down” mechanism, where a platform takes down infringing content once notified. This mechanism is also included in Article 17(4). Further, in Article 17(9) of the Directive, any request to disable or access infringing content has to be “subject to human review”. This poses a number of problems, both in terms of high costs for the company and the fact that there is bound to be human error, given the vast volume of content on online platforms.

The standard mechanism under the Directive to avoid infringing acts is a simple legalisation of user-generated content. Big online content-sharing service providers must acquire a license from right holders. In other words, the platform pays the right holder a fee in consideration for a right to use the material. This would solve a lot of problems as the use of content is made legal. However, some right holders will always fall through the net, especially smaller right holders.

In any case, it is difficult for me, even for big platforms, to achieve the aims set out in the directive without some type of targeted monitoring.

Q: If a company fails to take these reasonable measures, what would the sanctions be? Would the Directive hold up in court if it reached the courts?

PJ: An infringing company will be held liable and then based on the scale of infringement, damages will be calculated. However, it is large content producers in the music and film industries that tend to litigate and it is likely they will enter into extensive licensing agreements with platform operators. This could result into a situation in which content platforms will be more comfortable to use and possibly pose even less of a risk for the basic user who just wants to upload and share their favourite content.

For smaller right holders it could turn out to be very expensive to assert their rights, but the mechanisms provided for in the directive should ensure that platforms react quickly to delete unauthorised content.

Whether the Directive will hold up in the courts is a completely different question. It is possible that the Directive is challenged, at some point, before the Court of Justice of the European Union, but I do not believe that such a challenge would be successful.

Q: Some people thought the Directive might limit the freedom of expression on the internet, but you think it could have the opposite effect?

PJ: If licenses work, absolutely. This would work to the benefit of the user and could make the sharing of all sorts of material legal. But there are other mechanisms in copyright law, such as moral rights, which can still pose an obstacle for freedom of expression. However, the large variety of cases, basic online memes and such things, will be more or less safe as the purpose is simply to entertain. Still, if eager human moderators examine potentially infringing content, they will make errors. Content which is protected as free speech might be taken down, at least temporarily. Whenever a decision is made by a human not necessarily trained as a lawyer, that is likely to lead to results that might not necessarily strike the right balance. This is an issue that I see as more problematic for the freedom of expression.

Q: Surely there has to be some kind of human moderation, so how do we mitigate human error? Is there a better way of striking the right balance?

PJ: Unfortunately, or fortunately, I think humans are still best suited to do this. But moderators must be qualified and be able to keep up with legal and technological change. Errors in judgment will always be unavoidable, but a human moderator might possess more common sense and be able to critically reflect more than an algorithm. I am certain that automated filters will help to shoulder the incredible burden of this task, but critical decisions should still be made by human moderators.

Q: That’s all fascinating. Any last comments or thoughts?

PJ: Overall, I’m not as negative as I was in the very beginning, especially with Article 17, but I have a number of systematic concerns with the Directive in its entirety. It doesn’t address many of the pressing problems that we have in copyright law. It is also a very complicated Directive which makes it difficult for the average user to understand, which is unfortunate. However, hopefully the directive won’t affect the average user too much and they may even benefit from it through the shifting of responsibility from the user to the platform. In the future, I would hope the European legislator will find a more structured and far-sighted approach to copyright reform. Maybe the UK can demonstrate how this would look like after it leaves the European Union…

Interview conducted by Connor B

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Bernd Justin Jütte is an Assistant Professor at the University of Nottingham. He completed his LL.B. at the Ernst-Moritz-Arndt University of Greifswald, after which he completed his LL.M. and PhD at University of Luxembourg in 2011 and 2016 respectively. His current research focuses on European copyright law and has particular relevance to the new EU copyright reform.