EU Approves Copyright Directive

This month, the European Parliament voted in favor of the Copyright Directive, a piece of legislation intending to update online copyright laws. The apparent goal of the Directive on Copyright in the Digital Single Market is to hold platforms with user content, like YouTube and Facebook, liable for copyright infringement. Or in the video game world, sites and communities like Roblox, VR Chat, Minecraft and others might be severely impacted.

Many companies, especially rights holders, are in favor of the Copyright Directive as it supports anti-piracy efforts. Many companies, however, particularly the platform corporations and the creators on those platforms, feel that the directive will cause mass censorship and an overall decline in online content from European companies.

The most controversial components of the Copyright Directive are currently Articles 11 and 13.

In short, Article 11 aims to give publishers and authors a way to make money when a website links to their stories, which will allow them to demand paid licenses. This has also been called a “link tax.” Basically, aggregators would need to pay when they link to a longer story. This could mean sites like Google and Facebook face claims or big bills from content creators or news sites. Advocates argue this provision is a benefit to journalism. The provision allows an exception for “insubstantial parts of a press publication” but it does not give guidance on what constitutes “insubstantial.”

Article 13 requires websites to filter and stop users from sharing unlicensed copyrighted material. Advocates, including some well-known musicians, argue that this will ensure that creators (like musicians) are protected from copyright infringement. Detractors argue that the provision will pose an impossible impediment to smaller and up-and-coming sites, stifling innovation and actually provide little benefit to creators.

It has also been argued that these two articles support copyright trolls. Article 13 in particular, some argue, would result in widespread censorship on platforms in order to keep copyrighted material safe as it might not be feasible to individually assess every single piece of content that comes through. Polygon’s overview puts things succinctly in terms of how things play out for the platforms,

The [current] Content ID system and Copyrights Match Tool do an effective job of weeding out videos infringement on copyright, but there’s more at stake for Google. If the directive passes, Google would be liable for every copyright issue that pops up on its platform. Users upload more than 450 hours of video every minute, and many of those videos contain copyrighted material that is justifiable under the Freedom and Innovation Revitalizing United States Entrepreneurship Act, or FAIR USE Act, of 2007. More aggressive filters would likely disregard fair use circumstances.

YouTube’s current method of monitoring copyright infringement puts the onus of responsibility on rights holders. When the company detects a copyright issue, it sends a take down request to the user. Creators then present a counter-argument and, if the video in question is determined transformative enough, the video is re-uploaded. This happens often with memes, commentary videos, react videos, Let’s Plays series and just about most other video genres that appear on YouTube.

The new proposal would likely find YouTube implementing a more rigorous, pre-publish copyright check, which many critics assume means using a filtering system whose algorithm can’t tell the difference between transformative work and direct re-upload. User content isn’t directly at risk of disappearing, but in this scenario, a Doctor Who meme or video essay would be hit before it’s even published because it includes work that belongs to the BBC. Transformative or not, the filtering system would kill the video.

The directive will face a final vote in January, 2019. It is important to note a few things.

First, this is a directive, not a regulation. What’s the difference? A directive is like a non-binding instruction to EU member nations. It would then need to be implemented by EU member states in whatever way each state decided. This is important because the different states may interpret the directive’s text in different ways, which could lead to a patchwork copyright regime across Europe.

Second, this is an EU directive. It has no legal effect outside of the EU. However, in a global marketplace, regulations in a market the size of the EU are likely to affect business and legal decisions elsewhere. Should a new platform seeking to build traffic on user-generated content launch in France or Canada? Will enforcing a copyright claim against infringement be most effective in Germany or the US? These and many other questions will hinge on the outcome of this vote and the subsequent implementation.

Finally, the United Kingdom is still in the middle of Brexit. Even if this is approved, it may not take effect in the UK.



Brandon J. Huffman

Brandon is the founder of Odin Law and Media. His law practice focuses on digital and interactive media, entertainment, internet related issues and crisis communication. He serves as general counsel to the International Game Developers Association and is an active member of many bar associations and community organizations. He can be reached at brandon at odin law dot com.

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