The United Kingdom will not implement the European Union Copyright Directive

Responding to a written question put to the UK Parliament (“Parliament”) on the 21st January 2020, Government Minister Chris Skidmore stated that the UK has no plans to implement the controversial new EU Copyright Directive (“the Directive”) following the UK’s exit from the European Union (“Brexit”).

Whilst the UK was one of 19 EU nations that voted for the implementation of the Directive in 2019, new Prime Minister Boris Johnson has been a long-time critic of the legislation, describing it in a tweet in March 2019 (whilst he was sitting outside of Government as a backbench Member of Parliament) as “terrible for the internet”.

Entering into force in June 2019, EU countries have been given until June 2021 to implement the Directive into their national legislation; as the Brexit transition period (the period during which the UK must continue to obey EU laws) is scheduled to come to an end in December 2020, the UK is not obligated to do so.

Why is the Directive so divisive?

The Directive’s controversial nature derives chiefly from two of its provisions – (“Article 11”) frequently referred to as the ‘link tax’ and (“Article 17”) (formerly Article 13) referred to as the ‘upload filter’.

Article 11 will give press publishers the right to claim remuneration for the online use of their content by third-party platforms who display snippets of their online content. Critics of the provision argue that this equates to online platforms being forced to pay a fee for providing links to another website.

Article 17 imposes obligations upon online platforms to control the content that is uploaded to their website, and to take action if any of the uploaded content infringes existing copyright. Proponents claim that this will help rights-holders to effectively monetize and control the distribution of their content. However, critics have stated that this will force online platforms to develop upload filters – a move that they argue would have significant negative consequences by:

• causing smaller online platforms to commit to an expensive initial outlay – content filters can often be very expensive to set up, and there is a fear that it could price smaller platforms out of the market;
• blocking legitimate material – even the most sophisticated content filters are not 100% accurate, and there is a worry that an influx of content features that are cheap and poorly trained could lead to legitimate and original content being frequently overblocked; and
• leading to harsh fines when content filters fail to function 100% effectively – there is a worry that national governments – given free rein to implement the Directive as they see fit – may be overzealous in dealing with inevitable breaches of the Directive resulting from technological failures.

What does the UK Government plan to do now?

Mr Skidmore followed this announcement by stating that: ‘any future changes to the UK copyright framework will be considered as part of the usual domestic policy process’, suggesting that there are currently no plans to alter existing UK copyright legislation. However, speaking in Parliament on the same day, the Culture Minister Nigel Adams said ‘(the UK Government) support the aims of the Copyright Directive’ before going on to argue that: ‘it’s absolutely imperative that we do everything possible to protect out brilliant creators, as well as...the rights of users who consume music’. With this in mind, it remains to be seen what the future will hold for copyright legislation in the UK.