Earlier this year, the European Union (EU) approved sweeping new changes to existing copyright laws. This new European Union Copyright Directive clears the way for imposing liability on internet content providers when users of their websites post or share copyright-infringing materials. New limits are also imposed on linking to news sites.
U.S. and Prior EU Laws
In the United States, if an internet content provider receives information from a third party, the content provider’s liability may be avoided by complying with the requirements of the Digital Millennium Copyright Act (DMCA). Companies that comply with simple DMCA requirements are not liable for infringement if they take down the infringing material after receiving a “takedown” notice.
EU law handled this issue differently, but it had limitations on liability if a content provider acted as a “mere conduit” for the information. The prior law also prevented EU countries from imposing monitoring requirements on the content provider.
New EU Directive
The new Directive requires companies to use their best efforts to “ensure the unavailability” of the copyrighted works of others. In essence, prior copyright law in this area has been reversed. The new Directive also places additional limitations on linking to news sites.
EU countries now have two years to implement national legislation that meets the Directive’s requirements.
The new Directive is ambiguous, as it allows individual EU countries to pass legislation that isn’t consistent from country to country. It is also complicated, containing certain mitigating factors and exceptions for certain types of content and certain types of companies, many of which are not clear. At present, there is a considerable amount of uncertainty as to its meaning and application.
What You Should Be Doing
Companies providing services in or located in the EU may be required to implement a content filter or other affirmative means to prevent copyright-infringing materials from being uploaded to its platforms or websites by third party users.
Companies impacted by these changes should begin planning any software development or other steps necessary to ensure their compliance when EU member states begin implementing this Directive.
If you would like specific guidance regarding this change in law or would like to discuss protections under the DMCA, please feel free to contact the author at [email protected] or any member of the Technology Transactions or Intellectual Property practice groups at Morris, Manning & Martin, LLP.