Bell Gully Partner Tania Goatley and Senior Associate Kristin Wilson discuss the concept of ownership of information in today’s digital world, with reference to reforms to copyright law in Europe and New Zealand. 
The European Parliament recently voted in favour of the Copyright in the Digital Single Market Directive (‘Copyright Directive‘), in a decision that has the potential to revolutionise the way copyright is treated on the internet.
The introduction of this measure was intended to modernise European copyright law in line with modern technologies, however there are fears that in practice this directive could result in a new era of online censorship and content restriction. The passage of the Copyright Directive is particularly interesting in light of New Zealand’s current review of the Copyright Act, which will consider the introduction of similar measures to protect copyright online.
There are two articles of the Copyright Directive that have proven particularly controversial, namely:
Article 11 (which became Article 15 when the Directive was passed)
This article is aimed at online news aggregators, but is likely to have a much wider reach. It has been referred to as the “link tax” article, and will require websites to have licences if they want to use content that is produced by press publications (for example, if a news aggregator uses a short excerpt or snippet of an article when providing a link). There are some exceptions to the law for individual, non-profit uses or “individual words” or “very short extracts”. The scope of these exceptions will be determined by the Courts and the member states.
The introduction of this law will have a massive effect on how news and content from European publishers is able to be located online. Supporters argue that the introduction of this article will allow the press more power to license the online use of their content to providers who may currently be exploiting that content without payment. This would in turn allow the press publisher to recoup their investment in creating content, which may have the upshot of assisting with the sustainability and continuation of a free and pluralistic press. Detractors on the other hand are concerned that the introduction of this law will make it much more difficult to find and access information online, which may also have unintended negative consequences for press publishers if people cannot easily access the content they produce. There is also the risk that this law could be abused by “copyright trolls” who may take advantage of the requirement for paid licenses.
Article 13 (which became Article 17 when the Directive was passed)
This article places responsibility on “information society service providers that store and provide access to large amounts of works or other subject-matter uploaded by users” to monitor user uploads, by requiring those service providers to “in co-operation with rights holders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter to prevent the availability on their services of works or other subject-matter identified by rightholders”.
The new concept of “information society service providers” referred to in the Copyright Directive is very broad and would cover an almost unlimited number of online services. It appears that these service providers would be treated as being publishers of the information uploaded by users, and thus the providers could be liable for any infringement of law that may be committed by the users of their services, even if the provider has no knowledge of the infringing activities.
The arguments in support of this change include that it will give greater power to content creators by allowing better protections for the rights of (eg) musicians, filmmakers and authors. On the other hand, it has been argued that the introduction of measures to prevent copyright infringement could stifle creativity, given that so many online postings naturally and inherently build upon the works of others.
The logical result of the introduction of this article is that many service providers will begin using automated filters and algorithms to prevent copyright infringement. While artificial intelligence is a reality, it remains unclear, how an automated filter would be able to effectively allow for fair dealing (for example, for news reporting) or fair use (for example) for parody and the use of quotations. There is a real risk that automated measures taken by service providers to comply with this law would end up being over-zealous and overly restrictive. There is also a risk that smaller platforms with limited resources will not be able to comply with the requirements of the Copyright Directive, which may place them at a disadvantage.
Next steps in Europe
An online petition against the Copyright Directive gathered more than five million signatures and people across Europe marched in the streets in protest. The vote in favour of the Copyright Directive (438 in favour and 226 against) has caused further controversy. The European Commission however believes that the “vote ensures the right balance between the interests of all players – users, creators, authors, press – while putting in place proportionate obligations on online platforms”.
The Copyright Directive now needs to be implemented by member states, who will have some discretion as to how they choose to interpret the text of the Copyright Directive. The change in European copyright law will have a massive impact on the internet, and in particular how content originating in the European Union can be accessed online.
Reform in New Zealand
The Ministry of Business Innovation and Employment is in the process of reviewing New Zealand copyright law, and has released an Issues Paper that sets out matters that it is considering. These issues include matters that arose in the review of European copyright law. In respect of issues around the access and use of information online that is subject to copyright, the questions posed by the Issues paper include:
- What are problems (or benefits) with the internet service provider definition? What changes, if any should be considered?
- Are there any problems (or benefits) with the absence of an explicit exception for linking to copyright material and not having a safe harbour for providers of search tools (e.g. search engines)?
- Do the safe harbour provisions in the Copyright Act for internet service providers affect the commercial relationship between online platforms and copyright owners?
- What other problems (or benefits) are there with the safe harbour regime for internet service providers?
- What are the problems (or advantages) with the existing measures copyright owners have to address online infringements?
- Should internet service providers be required to assist copyright owners enforce their rights?
- Who should be required to pay internet service providers’ costs if they assist copyright owners to take action to prevent online infringements?
It is important that New Zealanders have input at an early stage as to how the copyright landscape in New Zealand should operate, particularly in light of changing technologies and methods for creating content and accessing information online. Submissions on the Issues Paper closed on 5 April. But, there will be further rounds of consultation once an Options Paper is produced, and again after the Bill is introduced to Parliament for consideration by a select committee.
If you would like assistance with anything raised by this article or, if you would like further information about the issue please get in touch with the authors.
Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
Partner Tania Goatley is an experienced commercial litigator, specialising in media and advertising law, food and beverage law, and intellectual property. Tania advises on all aspects of advertising promotions, including impacts of the Gambling Act, Fair Trading Act and Privacy Act. She is also experienced in advising on food and wine labelling issues, involving advice on the Food Standards Australia New Zealand (FSANZ) Code, the Food Act, the Wine Act and related regulations and industry codes. Tania has a strong media law background, advising on defamation claims, appearing in Court on name suppression issues, and providing media law training to journalists. She advises on all aspects of intellectual property law, including copyright, passing off and trade mark infringement disputes and litigation. In addition to her particular areas of expertise, Tania provides general advice on commercial and contractual disputes and litigation with successful outcomes for her clients. Tania is recommended for intellectual property by The Legal 500 Asia Pacific 2018, which notes her specialties as media and advertising and food and beverage. Contact Tania at tania.goatley@bellgully.com
Senior Associate Kristin Wilson is an experienced litigator with particular expertise in advertising, food law, privacy (including cyber security), media law and intellectual property. She prides herself on providing pragmatic, commercial and timely advice to clients. She regularly provides legal advice to clients as to how to best comply with the Fair Trading Act, Gambling Act, Privacy Act and Advertising Standards Authority codes. She is experienced in vetting advertisements and promotions, drafting terms and conditions, and responding to Advertising Standards Authority complaints. She advises on a wide range of food law issues, including marketing, export and import requirements, and regulatory compliance including advising on the Food Standards Australia New Zealand (FSANZ) Code, the Food Act, the Wine Act and related regulations and industry codes. She regularly assists clients with product formulation and labelling queries, advertising and marketing considerations and contractual issues including licensing and complex distribution agreements. She has represented media interests in the District Court, High Court and Court of Appeal, and regularly provides advice and representation regarding name suppression and media access to the courts. Kristin is also very experienced in advising national and international clients on privacy law and data protection issues. In addition, Kristin provides general advice on commercial and contractual disputes and litigation with successful outcomes for her clients. Contact Kristin at kristin.wilson@bellgully.com or connect via LinkedIn 
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