The debate about the draft Copyright Directive and especially Article 13 is in full swing. Human rights and digital rights organisations are trying to convince EU decision makers to delete Article 13 from the draft Copyright Directive. Article 13 would introduce new obligations on internet service providers that share and store user-generated content, such as video or photo-sharing platforms, including obligations to filter uploads to their services. Article 13 appears to provoke such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications if they are to have any chance of staying in business.
The main argument being made by human right organisations is that mandatory content filtering threatens free speech – our ability to spread and seek out ideas and information. It is very likely that internet companies will be over-enthusiastic in what they filter so that they avoid the smallest risk of costly fines. Automatic filtering systems will bring a new era of censoring to the internet. Human rights organisations also argue that certain platforms, like Wikipedia and Github, will be killed by the new reforms. Or, at the very least, that the reform will obstruct the valuable cooperation between users and the knowledge-sharing possibilities these platforms offer.
Of course, neither the European Commission nor the European Parliament want to close down these platforms or make things harder for European start-ups that share codes on Github. What they want is to regulate the big platforms like Facebook, YouTube and Google. Even if many of us can agree that this is a good idea, this reform is not the way to do it – the side effects are just too costly to society.
Do we need Article 13?
We know that big platforms make huge profits out of content uploaded by their users. Some of this content infringes on copyright, some doesn't.
The best solution for everyone would be if platforms and rightholders could agree on licensing. That is, whenever someone uploads a pop song to YouTube without permission of the record label, and YouTube makes money from this page by selling advertising space, the record label would get a share of that advertising revenue. If copyright holders and platform owners could cooperate and change the business model, this would solve the value gap problem. If things worked like this, free speech wouldn’t be threatened and everyone would get their money. But it seems that platforms like YouTube are reluctant to share their income voluntarily.
There's no question that we need to change the way we currently protect copyright. Internet platforms that collect or host content have changed the way we consume media. But the mandatory filtering required by Article 13 is not the way to go. If the European Commission and the European Parliament are unwilling to stand up to internet platforms and create a new model for copyright that relies on licencing, at the very least they must make sure that the right to free speech is not sacrificed on the altar of profit.
Article 13 would be made palatable if we implement 6 safeguards:
1. Change the presumption
Our presumption should be that users do not want to infringe on copyright. Most of us happily share videos, pictures and memes to entertain each other, not as part of a scam that involves stealing someone's intellectual property. But the version of Article 13 in the original draft legislation is designed around a presumption that users want to infringe on copyright. If we start from the opposite position, we can design a more sensible set of rules.
2. No pre-filtering
Monitoring users' content and the requirement to install a system for pre-filtering electronic communications violate freedom of speech.
To remove doubts about whether certain things might infringe copyright, we should spell out exemptions expressly. For example, parody and memes: these are examples of where legitimate free speech might incidentally use copyrighted material. We want to save memes? Then let’s name them.
Free speech mainly protects speech about political topics. If someone uploads a video about an ongoing protest to convince their friends to join and there is copyrighted music in the background, then this kind of thing should also be protected by an exception. Background music is something that shouldn’t ruin legitimate free speech. The EU can come up with a non-exhaustive list of exceptions.
4. What is private use?
Not only has the business model of the copyright ecosystem changed, but the way we use the internet for private and social purposes and non-commercial activity has also been transformed. We all know that home videos are uploaded to YouTube and will be viewed only by family or a small groups of friends, even though in theory it could reach billions of people. What if there is some copyrighted music or a cartoon visible in the film? Surely, there should also be an exemption for media destined for this kind of private use.
Article 13 will sanction platforms if they fail to take down copyrighted material. And that creates an incentive for platforms to be overly cautious and take down anything that creates the slightest risk of a fine. But what about when platforms start removing content that isn't really a violation of copyright? Shockingly, the bill is silent on that. Internet platforms have no economic incentive to try to get it right. If they wrongly take away your right to free speech, they face no sanctions at all. The EU should create a rebalancing incentive. If rightholders and platforms are liable for deleting lawful user-generated content, it will change their attitude and users’ content will be more effectively protected.
Platforms control all information available on the internet, they rank and take down content. When our political representatives or our judges take a decision that affects our rights, they have to explain themselves publicly. But we are now looking at businesses making decisions about free speech with no transparency or accountability. If your content is blocked, you should know who to challenge and have the chance to make your case. The EU could provide for free legal mechanisms across the EU to settle disputes between users, copyright holders and internet platforms.
It is not too late to delete Article 13 and create a sensible new model for copyright based on licensing. But if the EU cannot stretch to this, then it should at least put in these safeguards to protect free speech.