Copyright in the Digital Era

When you hear the word ‘Copyright’, the first though that comes to mind is the right of an individual or organization overs its body of work. However, copyright is more than just a right but a legal right a creator of content has over his/her creation (Reddy, 2016). It is a judicial right, which can either be gained by the right holder through succession or creation. In the digital world and the advent of the World Wide Web, HTML linking has acted as a guide to users for navigating the vastness of the internet (Saw, 2018). The digital economy has developed over the years with the beginning of books, music, images etc. being brought to the internet followed by movies, articles. Through time as these elements have digitized, they have also harbored various counterfeiters, content creators, content pirates who have used copyrighted content illegally (DeNardis, 2017). This has thus created a huge violation of Intellectual Property Rights (IPR) and specifically copyrights. Since internet is provided globally by various Internet Service Providers (ISP), they act as an intermediary between the flow of information from the creator to the audience (DeNardis, 2017). In legal terminology, they hold what is called as a ‘Secondary Liability’ over such violations of IPR’s and Copyright Laws (Boyle and Jenkins, 2018). It can be applied to those who 

“does not commit the legal wrong directly, but is found responsible for encouraging, facilitating or profiting from it” (Boyle and Jenkins, 2018). 

Countries are bound to have their own copyright laws in order to protect its citizens from copyright infringement however, 180 countries act as signatories of “Berne Convention” which acts as de facto guideline for International Copyright Law falling under the World Intellectual Property Organization (WIPO) (Rightsdirect, (n.d.).). These laws however, do not have any regulations as to how parties can be charged with secondary liability.

Winds of Change

The European Parliament has aimed throughout the years after 1996 when the WIPO regulations were brought into effect in the EU. The 2000 e-commerce Directive through Articles 12 & 13 had stated that ISP’s cannot be held responsible for the information shared by users (Colangelo and Maggiolino, 2018). After a number of legal lawsuits involving such copyright infringements and violations, the EU & the CJEU (Court of Justice of the European Union) began devising a proposal which would be in line with rise of Digital Economy and an aim to develop “A Digital Single Market Strategy for Europe” (Colangelo and Maggiolino, 2018).

On March 26th, 2019 the European Parliament approved the amendments to Article 11 & Article 13 of the European copyrights directive (Tom, 2019). This amendment is deemed as another ambiguous change for companies in EU, specially tech giants such as Google, Facebook, YouTube etc. after chaotic implementation of GDPR in May 2018.  An important part of this amendment is the establishment of an infrastructure at the end of the Internet Service Provider by establishing secondary liability of the ISP. This would directly hold responsible the ISP’s for not upholding the integrity of the data available on their platforms dubbed as ‘Illegal Online Content’ (Colangelo and Maggiolino, 2018). 

The Controversy 

There are 2 sides to the coin. These changes, that are a first after the new laws were introduced in 2001 are considered by most as necessary (BBC, 2019). However, these specific changes are involved in a controversial debate which has 2 sides

·     Supporters (EU lawmakers that voted for the proposal, creators who own the copyrights for their content)

·     Debaters (ISP’s such as Google, YouTube, Dailymotion, small scale content creators)

It is deemed necessary that laws involving or interacting with the Digital Economy must be kept up to date with the evolution of the digital economy. Regular trade and commercial laws stand ‘antique and useless’ when dealing with digital interactions. However, such amendments and changes must be brought at a consensus, which involves all the parties affected by its implementation to gain from it rather lose. 

While these laws impact the large tech giants that have till now operated with a blindfold, it also has the capability to impact the content which has become part of our daily lives on platforms such as Facebook, Instagram, Google, YouTube etc. 

Supporters to the legislation claim it to be “Copyright laws fit for the Digital Era” (Tom, 2019). Yes, it does have the capability to prevent and control the illegal use of data without the consent of the creator (copyright holder). The curial point that we must also look at is how severely it impacts the internet that we have familiarised ourselves over the past years. Google, after the vote described it as a catalyst that will “change the internet as we know it”(Tom, 2019). MEP (Members of European Parliament) who voted against it believe that it will curtail the online freedom that is the right of every individual who has access to the internet (Tom, 2019). 

Does it impact me?

As the arguments continue to determine how these laws will impact the internet, one may ask the question whether it impacts them or not. Like many regarded GDPR as an issue for companies to worry about, similar doubts are being raised about this as well. 

As a digital marketer, the law will seriously impact how well a digital marketer will be able to perform SEO functions for their site and how will they create content for their social media marketing without paying a license fee (Momtahan, 2018).

Two sections of the law have been the cause of concern for the marketers. 

Article 13 of the law is referred to as the “MemeBan”. It suggests implementation of a filter on the website that restricts a marketer, creator or a company to upload anything that may upload copyrighted content (O’Driscoll, 2019). YouTube already has filter of such sort which will block any content that is against the “fair use policy”. Article 13 takes it to a completely different level. Let us take an example

Trinity College Dublin celebrated Holi Festival on campus on the 21stof March, 2019. They posted a video of the celebrations on campus on their Facebook page1. The video contains some Indian songs. As per the new Article 13, the college can be held responsible along with Facebook for 

copyright infringement. This is because they have used copyrighted content for commercial purposes and Facebook knowingly promoted the use of such content (Wojcicki, 2018). 

The following will be captured by filters of blockers installed by Facebook or any such site on their sites to ensure such content is not uploaded. Content as we know it will be changed dramatically which will force companies to invest heavily in original content (Hill, 2018). As Facebook or any other social media site that hosts such content, this may be another bottleneck in maintaining their relevancy with users with the lack of useful and entertaining content as European viewers will have very limited and restricted content than Non-EU users (Wojcicki, 2018).

It is still unclear as to how such algorithms or programs that will be implemented by companies will be able to differentiated between such content when specially “Memes” use copyrighted images but are protected as “parodies”. 

In another example, Robert Downey Jr who plays Iron Man in the Marvel Cinematic Universe has been a trending celebrity on Facebook and Instagram. With 28 million followers on Facebook and 30 Million followers on Instagram, he is a celebrity and an influencer on these platforms. During the ongoing promotions of Avengers: Endgame in Seoul, he posted the following videos on Facebook2and Instagram3. The following video includes a song “Boogie Wonderland”. As per the new Article 13, such video will not be made available in the EU as it may not have a legal permission by the artist to use the song. In this case, the promotion technique being used by the artist will fail in the EU as he will not be able to reach his fans in the Union, while fans will not be able to connect with fans which is a primary objective of social media (Shahbaznezhad et.al., 2017). 

Article 11 or The Link Tax is the second article that has caught the attention of especially Digital Marketers dealing with SEO. The article dictates that 3rdparty content that is linked to a website will be eligible to claim license fees (Momtahan, 2018). A large number of websites rely on the concept of Backlinking. Backlinking is an external link of a website on another website (Moz, 2019). Such linking has an important part in the Google Search Algorithm and the website relevance and ranking (Momtahan, 2018). However, the new law will legally allow the sites or content creators to charge a license fee or the dubbed “Link Tax”from your site. 

One can only image the trouble a website creator for a large company like an airline or e-commerce company will have seeking permissions from the owners of such content and additional fees that would have to be paid (Momtahan, 2018). This would be a speed breaker for digital marketers who had been linking content previously without such legal restrictions. Additional costs of such licenses will also increase the cost of marketing digitally.

Complication beyond borders

This is a law that applies not just to European companies but any company or individual content creator who aims to work in the EU. 

YouTube has been the largest voice against the law, specially articles 11 & 13 (Engaged, 2019). As per the CEO of YouTube, Susan Wojcicki the term coined as “creator economy” or the collaboration various content creators on YouTube is what will be heavily impacted keeping in mind that many of these creators are not even EU citizens but have to comply with EU law.

Corporate collaborations with such content creators on YouTube that enabled them to expand their reach exponentially will have to maybe leave the EU while targeting or create EU specific content.

The rationale behind YouTube being the largest voice against the law is simple and can be explained with the following statistics

1.    50 million creators (Mughal, 2018)

2.    Operates in 91 countries (YouTube, 2019)

3.    300 hours of video uploads per minute (Mughal, 2018)

4.    60% of the most trending YouTube videos globally are restricted in Germany

German MEP member Julia Reda has been against the law. This was due to a similar law that was passed in Germany did not deliver on the positive benefits it was intended to provide. Point number 4 above is a direct consequence of the German law. 

Future

The future of the implications can just be estimated but not comprehended with full proof as there is still uncertainty about the intricacies of the articles. As more information will be available, companies and digital marketers will be better able to adapt strategy. However, it must be stressed upon that its implementation is headed towards a direction similar to GDPR in may 2018 (Momtahan, 2018). One thing is clear from the vote, it is a change that is required but its implementation shall not be at the cost of EU citizens lack to information that is accessible globally. Additionally, a huge change in corporate strategies regarding operations and marketing will be required to comply with the law.