Is Europe Getting Copyright Right?

The European Union’s move to overhaul copyright law aimed at big tech companies got the final approval from European governments on Monday April 15, 2019.

Last month, the European Parliament voted in favor of the law that features two rather huge updates, the second being most important in the music sphere:

Article 11 (“link tax”) lets publishers charge platforms like Google News when they display snippets of news stories or limit the text used in links to a few “individual words.”;

Article 13, now 17, gives sites like YouTube new duties to stop users from uploading copyrighted content.

However, there is also a long list of exemptions, including:

non-profit online encyclopedias

open source software development platforms

cloud storage services

online marketplaces

communication services.

The significance of Article 13 can not be understated as this new law essentially shifts the burden of enforcing copyright infringement online to platforms instead of content creators. Platforms like Spotify and most significant YouTube will now be held legally liable for hosting unlicensed content. In the past rights holders were forced to play a game of Whack-A-Mole to control their intellectual property but now platforms have a stricter duty to monitor and restrict what is uploaded on their platforms.

The hope of the new Article is to shift the responsibility for protecting the rights of artists and writers to platforms who have deeper pockets and have been somewhat lax in regards to policing their content. Tech companies would also have to prevent copyrighted materials from being uploaded, or seek licenses from the people who created them.

In the US, internet users are liable for the content they upload to platforms like Facebook and YouTube, not the platforms themselves. The platform normally isn’t held liable for copyright infringement or other illegal content as long as the platform removes the content expeditiously.

Nonetheless, the result of this new directive will likely be a stronger filtering system from Platforms that artists, rights holders and uploaders have to go through for content to be uploaded.

Hayleigh Bosher, who teaches intellectual property law at Brunel University in London stated, “[This] places burdens on the platforms that are basically unachievable.”

“We have seen time and time again that the technology is not there yet to be able to decide when it is and isn’t a copyright infringement,” repeated Bosher.

“The algorithms are not able to say, ‘ah, this is a parody, this is not a parody,’ “ she added. “That needs a human intervention.” via https://www.cnn.com/2019/03/26/tech/eu-copyright-law-explained/index.html

In regards to Article 11, the writers of the new directive state that Google and others will still be able to share “very short” snippets of text. However, the law doesn’t specify what “very short” means. Google says this is a preview of what the directive is essentially asking for.

Paul McCartney is one of the big supporters of the legislation. McCartney wrote that the Copyright Directive would “address the value gap and help assure a sustainable future for the music ecosystem and its creators, fans and digital music services alike.”

Impact

The impact of this directive as you can already understand by now is rather large. Most importantly, it’s impact could be felt in the U.S. As we saw with GDPR, the EU’s data protection legislation, European laws can influence US policy and some companies like Microsoft, say they are applying the EU privacy regulations outside of Europe thus they might do the same here.

Europe has led the charge against big tech giants protecting the rights of citizens and artists alike. As previously mentioned their privacy rules have had global ramifications but courts have also stated the European citizens have a “right to be forgotten”. In Google v. Spain, the European Court of Justice ruled that the European citizens have a right to request that commercial search firms, such as Google, that gather personal information for profit should remove links to private information when asked, provided the information is no longer relevant. Additionally, the EU imposed hefty antitrust fines on Google and sent Apple a $14.5 billion tax bill. German government also passed a law ordering social media companies to delete hate speech within 24 hours of it being published.

The directive issued by the EU at the moment is still very vague but there is no doubt that this marks a step in the right direction. I can only imagine that it will take some time for companies like Youtube to create filters that work properly and that don’t capture content such as memes that are uploaded for parody but with technology being at a premium at these companies it’s possible.

What this marks is a historic shift in the technology age, that is once again assisting individuals and rights holders of intellectual property to control their work without expending unreasonable cash or resources. Whack-A-Mole has never been effective or reasonable thus in the progression of copyright enforcement, this is a necessary step and unlike what the directive’s opposition is saying, it is not a dark day for internet freedom.

European Parliament Rapporteur Axel Voss said it best it’s a step in the right direction.

“This directive is an important step towards correcting a situation which has allowed a few companies to earn huge sums of money without properly remunerating the thousands of creatives and journalists whose work they depend on,” he said.

While the nuts and bolts need to be worked out, this is a win for songwriters, artists and content creators worldwide. Even in possible failure, this puts the big tech companies on notice that allowing people to use their platforms to infringe will not be tolerated. I will always agree with that sentiment. The challenge is for Google, YouTube and others to use their technology to protect rights holders as well without harming significantly harming their products.

Google Europe seems to admit that this is a step in the right direction while also acknowledging that the directive wasn’t totally a hit.

The U.S. will certainly follow suit sooner than later but with the directive calling for action within two years, we get to wait and see how things hash out abroad before changing our policies.