The EU just passed its massively controversial overhaul of online copyright, how will this change affect you?

Over the past few months, the European Parliament was in discussions to overhaul copyright law across the EU. This new Copyright Directive passed by a slim margin of 348 to 274 and brought with its two very controversial clauses known as Article 13 (renamed Article 17 in the most recent draft of the legislation) and Article 11.  Nicknamed the upload filter, and link tax respectively, Article 13 and 11 are a vast deviation to the United States’ Digital Millennium Copyright Act (“DMCA”), and will greatly affect how US business’ operate in the region for the foreseeable future.

Article 11, known more commonly as the link tax allows publishers and rights holders to charge platforms when they display snippets of news. For example, services like Google News and Facebook could be forced to pay publishers for displays links and snippets of news stories. Google’s parent company, Alphabet was one of the largest critics against the new directive, claiming if news outlets charged for licenses to display the content already seen on Google News, Google will be forced to strip back the content it shows in search, and shutter Google News altogether. This is not the first time a country attempted a “link tax.” Both Spain and Germany attempted to introduce a link tax, and both times it was a complete failure.

The more well-known Article 13 (Article 17) was subject to a last-minute push to remove the clause from the final approved draft but was rejected by just 5 votes. Article 13 was publicized as the “death of memes”, unlike DMCA which grants protection so “service providers” like Youtube from the content posted by their users, Article 13 places new duties on service providers to prevent users from uploading copyrighted content. This leads to the unavoidable “upload filters” that will force online service providers like YouTube to spend significant funds to attempt actively police its own platform.

What more concerning is the text of the new Copyright Directive are vague at best, this is because EU
member states will have two years (2021), to adopt its own localized laws and policies enforcing the new directive. While the law may have been well-intended in an effort to empower rights holders, the reality reveals a true lack of understanding for free speech and an open internet. Advocates for the directive claim this the EU’s answer the dominance of US tech giants over online spaces. PSL disagrees, and it’s our opinion that this new directive will stifle innovation, and the openness we’ve come to know about the internet.

How does this affect US-based companies?  Anyone developing a platform with EU users that involves content or link sharing will face massive uncertainty. The ramifications of this new directive include blocking features or preventing the development of features that internet users currently expect, and in exchange will force companies to now implement a very expensive ineffective and inaccurate automated filtering systems.  Without a doubt, this new directive will have a negative effect on the EU’s digital economies.

How will this effect streamers, and content creators? The rollout of the new directive across the EU over the next two years will tell the story. However, PSL predicts this will have a massive effect on live streaming altogether. It’s very possible we will see a world were  EU citizens will no longer have access to US-based live streams, and live streaming services such as Twitch.  The expense imposed by the directive to police content for copyrighted material may be too much for service providers like Twitch, and in turn, may opt for blocking EU access to US-based streams and content.  For now, it’s a massive wait and see game.

Press Start Legal provides legal services to the interactive entertainment industry.  Our Clients span across multiple forms of interactive entertainment from Streaming, Content Creation, to Video Game development and more. If your need for legal services and want a free consultation send us an e-mail to NewClient@PressStartLegal.com to set up a call today.

Copyright’s Owners Must Register Before Enforcing Their Rights. An Enforcement of an Age Old Rule, and the End of a Circuit Split.

C                On Monday, March 4 2019, the United States Supreme Court resolved a long-standing circuit split regarding when a party can sue for copyright infringement. What’s the split? For some time, several United States Circuit Courts allowed a party to bring an action for copyright infringement before the Copyright Office has issued or denied a parties copyright registration application. This was because it takes an estimated 7 months from the date of filing to the date of registration.  The issue is, this circuit split was not supported by the plain text of Section 411(a) of the Copyright Act which states registration is a prerequisite to suit, not merely filing the application.

                This was the central issue in Fourth Estate Public Benefit Corp v. Wall-Street.com, LLC, where Fourth Estate sued Wall-Steet.com for copyright infringement as a result of hosting various news articles Wall-Street.com no longer had permission or a license to display on its site.  The kicker here was Fourth Estate had yet to receive a registration certificate for the various articles, and Wall-Street sought to dismiss the case because Fourth Estate had yet to comply with the prerequisite to bring its claim. Justice Ginsburg, drafting the Court’s unanimous ruling stated it’s the role of Congress to correct the long delay at the copyright office and not the Courts.

How Does this Change Effect You?

In the United States once a work of authorship is recorded on a fixed medium you have a copyrightable asset.  To protect that asset from infringement, or to enforce your exclusive rights in that asset you must file for a copyright with the United States Copyright Office.  Now, time is a large factor when thinking about protecting your IP. As a developer or content creator, you will need to factor the additional time required to secure a copyright registration prior to commencing an infringement action.

For Developer Studio’s this enforcement of registration as a prerequisite should shift your thinking from protecting your IP once everything is finished to taking an as we go approach to protecting your copyrightable IP, and planning your developments legal budget for the year. As a studio, as parts of your project reach completion filing registrations in a proactive approach will save you time in the event you are forced to enforce your copyrights.

What if I am suffering from infringement now, do I still need to wait? What are my options?

                If you’re currently suffering from infringers don’t worry, there are options and paths for you depending on budget and type of work. The Copyright Act does allow for very limited exceptions applicable to certain categories of copyrightable assets. If you’re a copyright owner who is preparing to distribute work that is vulnerable to predistribution infringement, you may apply to the Copyright Office for preregistration. What type of works are these? Works that are vulnerable to predistribution infringement typically include movies or musical compositions.  Another exception extends to live broadcasts, however, the copyright owner must eventually pursue registration for their claims in order to maintain their suit for infringement.

If you don’t fall into those categories there is another option around the 7 months estimated wait for registration. Copyright owners can opt for an expedited application review process called special handling, that results in the Copyright Office evaluating the if a work can be registered quickly, sometimes in less than 5 business days. To meet this special handling review a copyright owner must: have an acceptable application, an acceptable deposit, and a nonrefundable filing fee of $800 per claim.  If this falls out of your budget, and you’re forced to wait the 7 plus months for a registration certificate fear not. The Court in its ruling recognized this issue and will allow a Copyright owner to recover for both pre and post-registration infringement.

Press Start Legal’s team of intellectual property lawyers advises its clients on a broad range of copyright protection and enforcement strategies.  Are you looking how to best protect your intellectual property within your business needs? Feel free to reach out to Zachary Rich at PressStart.Legal for a free consultation on how we can help you and your business protect your brand and all of your hard work.