“The EU Takes One Step Forward, Two Steps Back in Digital Copyright Reform”

The EU Takes One Step Forward, Two Steps Back in Digital Copyright Reform

By Lexi Thiel

On September 12, the European Union (EU) Parliament voted in favor of certain amendments to its existing copyright regime—amendments that sent waves across the world. On the most extreme side, some commentators are predicting the directive will bring about the end of the Internet, while others take the more modest view that the bill will have positive ramifications for some (such as film directors and screenwriters), and negative ramifications for others (including small and medium-sized digital platforms). Either way, this directive has sparked a massive amount of debate and controversy, and whether or not it results in the death of the Internet, it will undoubtedly change the landscape of digital media in Europe.

The European Union Directive on Copyright in the Digital Single Market, otherwise known as the Copyright Directive, is intended to modernize online copyright law in the EU.[1] With the digital landscape becoming increasingly prevalent in the realm of copyright, seldom few are arguing that some sort of update to existing copyright legislation in the EU was not needed. However, the prevailing view is that the bill is likely to cause more negative, than positive, effects.

In particular, Articles 11 and 13 of the Copyright Directive have received the most attention and criticism. The amendment to Article 11 provides publishers with a means to “obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers,” though hyperlinks are excepted from this amendment. The amended Article 13 mandates that digital content service providers enter into license agreements with copyright holders, and if the right holders do not want to license their content, the parties must “cooperate in good faith in order to ensure that unauthorized protected works or other subject matter are not available on their services.” In furtherance of this cooperation, online service providers must put in place sufficient remedial measures for those whose content is unjustifiably removed by the service providers.[2]

One proposition for which there is little doubt is that the new directive will shift the burden of protecting copyrighted content from the copyright owners themselves to digital platforms such as Google and Facebook[3]. Under this new regime, it will be up to the digital platforms to ensure that their users are not unlawfully sharing copyrighted content.[4] Initially, this effect seems sensible, since the owners of copyrighted content are likely often unaware that their work has been impermissibly shared online. However, this article has received intense backlash from the public. The primary argument against this provision is that it will create untenable costs for small platforms, who do not have the resources or capabilities to screen all content shared on their sites.[5] Additionally, experts contend that this sort of extensive screening of content can only be accomplished by automated filtering systems, which are flawed in-and-of themselves.[6]

One source of intense opposition to the directive is the Electronic Frontier Foundation (EFF), which identifies as “the leading nonprofit organization defending civil liberties in the digital world.”[7] The group advocates for free expression and innovation and is composed of over 37,000 members globally and approximately 3,000 members in the EU. In an effort to prevent the passage of the Copyright Directive in January, the EFF sent a memorandum discussing the reasons for its opposition to each member of the EU bodies negotiating the final draft of the directive.[8] With respect to Article 11, the EFF argues that portions of the article contain significant ambiguities which can lead to adverse effects.[9] For example, the EFF contends that Article 11 does not make clear “when the use of a quotation (such as in a news report) amounts to a use that must be licensed,” by the platform,[10] while some commentators have suggested that quoting more than one word  brings the platform under the purview of Article 11 and requires a license.[11] The EFF’s primary criticism concerning Article 13 is the high potential of abuse and false claims of copyright which the EFF believes will lead to over-censorship of content on the web.[12] Additionally, the creator of the World Wide Web, Tim Berners-Lee predicted that Article 13 “would transform the internet from an open platform for innovation to a tool for automated surveillance.”[13]

This proposed directive is likely to cause even more confusion as a law within the EU as opposed to a law passed by the legislature of a single country. This is because, if the directive is passed, it will be up to each member state to implement the directive into its legal system, and the way in which the directive is implemented, and thereafter interpreted, by the various members will not necessarily be the same.[14] Given the broad, vague language of the articles in controversy and the ambiguities they thereby create, those platforms affected by the regulations will likely face considerable difficulty in determining how to adhere to the rules.[15] Additionally, digital platforms frequently traverse state lines and operate across any number of countries, and  in the United States, digital platforms like Youtube are accorded safe harbor from copyright infringement in certain cases. Therefore, the practical realities of this directive are further complicated.[16]

When the Copyright Directive was initially approved in September, the prevailing thought was that when up for a final decision in January, the EU members would vote to adopt the directive. However, that result is no longer foregone. For the directive to be rejected or reworked, there must be a sufficient number of EU states opposing the directive to constitute a “blocking minority.” That number is 35% of the EU members[17]. Due to a change in government since the vote in September, Italy no longer supports the passage of the directive, and combined with Germany, Finland, the Netherlands, Slovenia, Belgium, and Hungary, the opposition now constitutes more than 35% of the EU states.[18] However, the opposing members are not in consensus on their reasons for opposition and proposed solutions, so as of now, which way the vote will go in January remains up in the air[19].

In sum, whether the amendments, if passed, will amount to the death of the Internet, is unknown. However, the amendments will undoubtedly change the media landscape within the EU. Article 11 (the “link tax”) and Article 13 (the “meme ban”) contain broad and ambiguous language that will make it more difficult for online service providers to ensure compliance with the applicable copyright laws. Further, memes, an exponentially-growing phenomenon amongst the younger generations, will arguably run afoul of these new amendments. While memes are currently a benign, every-day mode of communication between many teens and young adults, Article 13 has been construed by many to prohibit the sharing of memes online, and soon, online service providers may be required to start filtering and removing memes from their sites.[20] Due to these potentially wide-ranging consequences, the EU bodies responsible for negotiating the final draft of the amendments before they become official law should make sure the language is clear and will best effectuate the goals best suited to the countries within the EU in this digital age.

[1]Matt Reynolds, What is Article 13? The EU’s Divisive New Copyright Plan Explained, Wired (Oct. 2, 2018), https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban

[2] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2018-0337+0+DOC+PDF+V0//EN

[3] Matt Reynolds, What is Article 13? The EU’s Divisive New Copyright Plan Explained, Wired (Oct. 2, 2018), https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban

[4]James Vincent, EU Approves Controversial Copyright Directive, Including Internet ‘Link Tax’ and ‘Upload Filter’, The Verge (Sept. 12, 2018), https://www.theverge.com/2018/9/12/17849868/eu-internet-copyright-reform-article-11-13-approved.

[5] Id.

[6] Editorial Board, The E.U. Copyright Directive won’t Kill the Internet—but it could still cause Lasting Harm, The Washington Post (Sept. 30, 2018), https://www.washingtonpost.com/opinions/the-eu-copyright-directive-wont-kill-the-internet–but-it-could-still-cause-lasting-harm/2018/09/30/afa69f0e-bac0-11e8-a8aa-860695e7f3fc_story.html?noredirect=on&utm_term=.b9cee8035c60.

[7] Cory Doctorow, EFF’s Letter to the EU’s Copyright Directive Negotiators, EFF (Oct. 23, 2018), https://www.eff.org/deeplinks/2018/10/effs-letter-eus-copyright-directive-negotiators.

[8] Id.

[9] Id.

[10] EFF Warns of ‘Ill-Considered’ Copyright Provisions, WIPR (Oct. 24, 2018), https://www.worldipreview.com/news/eff-warns-of-ill-considered-copyright-provisions-16872.

[11] Cory Doctorow, EFF’s Letter to the EU’s Copyright Directive Negotiators, EFF (Oct. 23, 2018), https://www.eff.org/deeplinks/2018/10/effs-letter-eus-copyright-directive-negotiators.

[12] Id.

[13] EFF Warns of ‘Ill-Considered’ Copyright Provisions, WIPR (Oct. 24, 2018), https://www.worldipreview.com/news/eff-warns-of-ill-considered-copyright-provisions-16872.

[14] Julia Alexander, ‘Internet is under Threat’” What you Need to Know about the EU’s Copyright Directive, Polygon (Sept. 11, 2018), https://www.polygon.com/2018/9/11/17843664/copyright-directive-europian-union-parliament-explained-internet-article-13-youtube-fair-use.

[15] Id.

[16] Id.

[17] Cory Doctorow, Italy may Kill the EU’s Copyright Filter Plans, Boing Boing (Oct. 23, 2018), https://boingboing.net/2018/10/23/trilogues-on-the-rocks.html.

[18] Id.

[19] Id.

[20] Matt Reynolds, What is Article 13? The EU’s Divisive New Copyright Plan Explained, Wired (Oct. 2, 2018), https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban