After two and a half years of heated debate, the European Commission, the European Parliament and the EU member states have agreed on the Copyright Directive. It has been a long process and the very final vote in the European Parliament will only happen in April.
Modernisation was inevitable but these changes threaten freedom of expression
Modernisation of EU Copyright legislation was inevitable and there are certain areas where changes are truly needed. These are important for rights-holders, such as artists, and publishers, and record companies, as well as users, such as researchers, and people who simply watch videos or read news online. The only stakeholders who were fine with the previous rules were large internet companies that make millions of euros from other people’s work. Article 13 aimed to force internet giants to conclude licensing agreements with rights-holders and share the revenue they get from the work of others. Examples of these practices include Google collecting and displaying articles by third parties and YouTube making huge profits from videos uploaded by its users.
The solution for this economic imbalance, offered by EU decision makers, only met the expectations of the rights-holders. In light of this other stakeholders sent open letters asking EU decision makers either to suspend negotiations on Article 13 or cancel it all together. These stakeholders included academics, the European Copyright Society, human rights organisations, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, individual users, and various prominent associations representing the interests of the creative sector.
What worried these organisations, including Liberties, was the threat to freedom of expression. The proposed Article 13 would have forced content sharing service providers to use upload filters to avoid the slightest chance of copyright infringement. Those who oppose this technical solution argued that automated content filters cannot differentiate between lawful and unlawful content. This would lead to internet platforms designing upload software that can filter out anything that might cause them problems, allowing them to avoid liability for content uploaded by users.
EU legislators could have done so much better
Not only do upload filters cause problems. We also worry about the lack of safeguards that would protect our fundamental rights. Protecting freedom of expression is crucial for avoiding monitoring and mandatory filtering requirements. We also argued that rights-holders and platforms should be liable for deleting lawful user-generated content, not only for not deleting content that infringes copyright. Sanctions for deleting lawful content would change the attitude of the internet platforms, and user content would be more effectively protected. We also asked for a clause requiring the internet giants to work transparently and to create legal mechanisms across the EU to settle disputes between users, copyright holders and internet platforms.
EU decision makers could have set up a new copyright regime that would have been a better fit with the existing technology and how the media has transformed. It would have been a great opportunity to change copyright law and think over what we mean by private use and what the exceptions are in terms of when and how copyrighted work can be used.
However, what we got in the end is far from ideal. There are some safeguards we are happy about, such as criticism, reviews, caricature, parody or pastiche that are exceptions and limitations when uploading content. This could save memes and other parodies. But the main problems with Article 13 have not been resolved.
Strict exemption policies for small companies will lead to catch-all deletion of content
Start-ups and smaller companies will not be saved from the extra burden. Three requirements have been set up for exceptions, but there is not a single online content sharing service provider whose service meets these requirements unless they are starting their business from scratch today. These requirements are that they have to have been available to the public for less than three years, have an annual turnover of less than 10 million euros and have fewer than 5 million monthly visitors. Companies have to meet all three of these criteria to be exempted, not just one or two of them. And even these companies have to demonstrate that they have made their best efforts to prevent further uploads if they are notified.
The biggest problem we see here is that the Copyright Directive will change the liability regime of the intermediary service providers without rethinking the possible side effects and collateral damage caused by the modification. Those who only host content created by others will be held liable for copyright infringement. So far, hosting companies were notified about copyright infringement and had to take down the content in question to avoid liability. From now on the limitation of liability will not apply to online content sharing service providers. They will be liable for content uploaded by their users even if they are not aware of the copyright infringement. To avoid liability, these companies will do anything, including pre-filtering, monitoring or banning users in order to avoid any liability. And this means they will remove or filter out anything that has the slightest chance of infringing copyright. This could be a five-year old singing a song, or a video of a political protest with copyrighted music playing in the background.