January 28, 2020 - European Union

Un-Levelling the Playing Field: The UK Declines to Implement the New EU Copyright Law

The UK has announced that it will not implement a key change in the EU copyright regime after Brexit. As a result, for affected businesses, consistent Europe-wide digital compliance in the post-Brexit era just became a little bit harder.

The EU Digital Copyright Directive imposes greater obligations on online content-sharing platforms to avoid users’ uploading copyright infringing content. The UK’s position means that its post-Brexit liability regime will be more favorable to content-staring platforms than in the remaining 27 EU member states.

Three and a half years after the UK’s referendum, Brexit has finally become a reality. Given the protracted negotiations around the UK’s decision to leave the EU – and with a minimum 11-month transition period – you could be forgiven for thinking that it could take a while before UK law would begin to diverge from the EU in any material way. However, the UK now seems to be embracing its legislative freedom before Brexit has even arrived, by changing its position in relation to one of the EU’s most controversial recent laws.

As we have previously reported, the EU approved a new Digital Copyright Directive in 2019 after a long and controversial legislative process. Now, however, a UK government minister has announced that the UK “has no plans” to implement that Directive. This means that the UK will have a different liability regime than the EU for uploaded or online content which infringes a third party’s copyright. Perhaps not coincidentally – given the need for the UK to negotiate new trade deals with key global partners (especially the United States) – the UK’s liability regime will be more friendly to technology service providers and operators of online platforms.

Under the Digital Copyright Directive, online content sharing service providers (“OCSPs”) are required to take greater responsibility for infringing content that is shared on their platforms.  The so-called “content filtering” provision (originally Article 13, now Article 17 as passed) in the Directive was fiercely opposed by many technology providers – and was even criticized by the current UK prime minister as being “terrible for the internet”. Despite the opposition (and with the UK’s active support), the Digital Copyright Directive passed and must be implemented in the 27 remaining EU member states by June 2021.

Here is a summary of the key takeaways in relation to this provision:

  • Any online content-sharing service providers must obtain licences from copyright holders before hosting or otherwise making available any copyright-protected materials on their service.
  • If an OCSP makes available copyright-protected materials without a valid licence, in order to avoid liability for user-generated content that’s uploaded and that turns out to infringe copyright it must demonstrate that:
  1. it made “best efforts” to obtain permission from the copyright holder;
  2. it made “best efforts” to make specific copyrighted works or material unavailable, if so requested by the rights holder; and
  3. it acted expeditiously upon receiving notice from the relevant rights holder to remove or block access to the infringing material, and made “best efforts” to prevent future uploads of that material – the latter being known as the “stay down” obligation.
  • Smaller businesses (meaning, OCSPs whose services have been available in the EU for less than three years and that have an annual turnover of less than €10 million) are only required to demonstrate that they made “best efforts” in relation to obtaining authorization from the copyright holder, and acted expeditiously in removing or blocking access to the content – so while there is still a “take down” obligation, there is no “stay down” requirement.
  • Despite the above “softening” of this provision, the requirement to use “best efforts” to avoid liability is still a high threshold that many OCSPs may struggle to meet.
  • After receiving backlash for the potential impact on legitimate acts of expression (such as the creation of GIFs or memes), this provision was amended in 2019 to carve out exceptions for “purposes of quotation, criticism, review, caricature, parody and pastiche”. 

The UK’s decision not to implement the Directive will mean that the UK will maintain a much lighter-touch approach than the EU to online copyright infringement – i.e., there is no ‘stay down’ obligation, and liability would only accrue to an online hosting platform that goes beyond merely acting as a “conduit,” “cache” or “host” of information. Essentially, this means that passive online service providers that operate without actual knowledge of infringing content on their services are likely to escape liability for copyright infringement, as long as they act expeditiously in taking down that content if and when they do gain actual knowledge of the content. Online platforms will not be under a general obligation to monitor content that they transmit or store (and, indeed, may lose the protection of the above carve-outs, if they did choose to monitor the content and came across infringing content that they did not take down expeditiously).

By diverging from the EU position to retain more technology-friendly digital compliance standards, the UK is sending a clear message that it intends to remain “open for business” post-Brexit. Other EU Member States will have until June 7, 2021 to implement the Digital Copyright Directive into domestic legislation but the UK, which will have left the EU by then, will not be one of them.