The new Copyright Directive

The European Commission has voted in favor of the new Copyright Directive on March 26th. This directive has already brought about rebellious voices within the tech branche. Especially article 13 is controversial.

We’re not too happy about it, and neither should you be. Although there are definitely some positive changes, there are also aspects to this directive that are pretty unreasonable. You know what, let’s start with some of the positive aspects.

The positives

The new Copyright Directive does have a positive intention. It aims to limit the ways in which copyrighted content can be shared. Article 11 tries to protect copyright holders and enables creatives to receive better remuneration for their works. It gives a better protection for their works and it gives authors and performers a stronger position to negotiate. For example, an author can claim additional remuneration than originally agreed if the original remuneration is low compared to benefits derived by the distributor.

We are of course all for an honest and fair model where everyone receives what he/she has the right to. The question is if the goal justifies the means.

The meme ban

There are some really negative aspects to this directive as well. One of the biggest being that internet platforms like Wikipedia, YouTube, but also smaller content platforms will be liable for the copyrighted content their users upload. The only way to avoid liability is to review every upload to the platform. According to article 13 (the Meme Ban) of the directive, internet platforms need to filter copyrighted content and either remove it or pay for it.

If an author’s work is published on a platform, he can demand satisfaction from that platform for using his work. In other words, tech companies will need to check every upload for a copyright. But without a large budget, how will they do so? De Electronic Frontier Foundation isn’t happy with the implications of the directive.

Also, the larger internet community is especially worried they’re not able to share memes anymore. The technology for the filters is not (yet) capable of distinguishing between copyrighted content and memes. It seems the internet might become a really boring place.

Copyright directive

The meme ban

There are some really negative aspects to this directive as well. One of the biggest being that internet platforms like Wikipedia, YouTube, but also smaller content platforms will be liable for the copyrighted content their users upload. The only way to avoid liability is to review every upload to the platform. According to article 13 (the Meme Ban) of the directive, internet platforms need to filter copyrighted content and either remove it or pay for it.

If an author’s work is published on a platform, he can demand satisfaction from that platform for using his work. In other words, tech companies will need to check every upload for a copyright. But without a large budget, how will they do so? De Electronic Frontier Foundation isn’t happy with the implications of the directive.

Also, the larger internet community is especially worried they’re not able to share memes anymore. The technology for the filters is not (yet) capable of distinguishing between copyrighted content and memes. It seems the internet might become a really boring place.

Private censorship

The biggest concern is the potential for ‘private censorship’, which implies a restriction to the freedom of expression. If companies will need to review every piece of content that’s uploaded to their platforms, in order to avoid liability, there is a chance they’ll start disallowing a lot of content, resulting in some sort of censorship.

Facebook has been in the news already for censoring content containing certain political views. Both Facebook and Google have also been fined by the UK for not removing ‘hate speech and fake news’ fast enough. If these tech giants can’t yet live up to article 13, how will internet platforms with much smaller budgets?

It’s obvious this will give problems. First of all, how will internet platforms adequately review content? Exactly, the automated filters that now exist are not nearly advanced enough to recognize every copyright infringement. Especially smaller internet platforms will have a problem here. The only way to reach high accuracy is by having people review every upload. That’s not doable.

Another way is to ban potential infringing content. This means the automated filters will be so strict, that material that is not copyrighted would still be refused (like memes), and there would still not be a 100% accuracy.

Actually, content might be refused not because of a copyright infringement, but because the internet platform doesn’t have the resources to review it. It’s not unlikely that internet platforms will come up with a system that saves time and money. A system that automatically filters ‘potential liability threats’, to lower the number of uploads that actually needs reviewing. If your content matches the parameters of the filter, it might get filtered even before getting reviewed.

This might also result in bans for materials uploaded by the owner. For example, Youtube might add a filter for all Disney content, because Youtube doesn’t want any trouble from Disney. Disney has the resources to sue Youtube. But than even Disney cannot upload it’s own content to Youtube… See where this is going?

The directive is not yet fully in effect. The council of ministers still need to vote. Afterwards, the nature of European directives demands ‘harmonisation’ first. This means that member states will need to transform the content of the directive into national legislation. The member states have until 2021 to do so. Those countries that voted in favour are expected to be the first to harmonize the directive. Make sure you keep an eye out for the harmonisation in your country.

A little nuance

According to several experts in the field, like Google’s paralegal Kent Walker, the directive doesn’t necessarily mean internet platforms are liable for all content uploaded to their platform. If a company can prove they undertook as much effort as they possibly could to identify and remove copyrighted content, they are acquitted of liability. But this is all still pretty vague.

The only thing we can do is just wait this one out and see what happens. Hopefully it all turns out better than we’re expecting it to.