On March 26, European lawmakers approved sweeping copyright reforms that could and will most likely have far-reaching legal consequences for tech-giants like Facebook and Google.
The new copyright directive has been in the works since 2016 and is aimed at bringing the EU’s two-decade old copyright rules into the 21st century, helping artists and publishers preserve their intellectual property that is so easily disseminated across the internet.
What’s the Legal?
If there’s anything to know about the EU’s copyright directive, “Copyright in the Digital Single Market,” it’s that it is vague, ambiguous, and heavily criticized. The Directive is part of the bloc’s efforts to update its laws, reflecting the continuous challenges posed by today’s digital age.
The copyright law has been heavily criticized with respect to two sections—Articles 11 and 13 (now re-numbered to be Articles 15 and 17, in the final version).
Article 11: “The Link Tax”
Article 11 allows member states to ban links to news stories that contain more than a word or two from the story or its headline, but it only requires them to ban links that contain more than “brief snippets.” In other words, text that contains more than a “snippet” from an article are covered by a new form of copyright, requiring that material be licensed and paid by whoever quotes the text. The problem lies around how each member nation defines “snippet.” EU-wide services will continue to struggle with presenting different versions of their sites to people based on which country they’re in.
But, what are critics saying, most notably, the Electronic Frontier Foundation (EFF)?
- Overall, Article 11 has alot of “worrying ambiguity.” The EFF raised its concern of who will represent the concerns of internet users?
- The final draft has no exceptions to protect small and non-commercial services
- News companies will not only have the right to charge for links to their articles, but they will have the right to ban linking to those articles altogether
- Market concentration in news media will be accelerated, because giant companies will license the right to link exclusively to one another, but not to smaller sites.
Article 13: “Censorship Machines”
Article 13 basically redefines how copyright works on the Internet.
Previously, the law was designed to give news organizations more protections to ensure they’ve paid fairly for the dissemination of their stories online.
Now, under Article 13, the burden shifts to the tech giants and content providers. It specifically removes the protection for online services and relieves copyright holders of the need to check the Internet for infringement and sending out DMCA notices.
Rather, the burden shifts to these online platforms that are now charged with ensuring that none of their users infringe upon copyright law, at all. You can see why this is the most controversial part of the Copyright Directive.
For companies like Google and Twitter, they believe this Directive does more harm than good, harming Europe’s creative and digital economies, creating a “wild west” with respect to intellectual property protection.
Google Hates The Copyright Directive
Google recently suggested it may be forced to pull its news aggregation platforms from Europe as a result of this new legislation. With the Directive, publishers will have the right to demand money from companies like Alphabet, Inc., the parent company to Google, Facebook, Inc., and other web platforms when fragments of their articles show up in news search results.
“Google News might quit the continent in response to the directive,” said Jennifer Bernal, Google’s public policy manager for Europe, the Middle East, and Africa, back in January.
While Google claims it does not make money from its news service, nevertheless, news results still allow mobile users to visit its search engine, where they often pursue queries that generate lucrative ad revenue.
Facebook Supports The Copyright Directive
The social media giant, Facebook, recently stated its intentions to comply with all relevant parties to ensure its platform aligns with the rules of EU member states. However, Facebook has been the subject of quite the plate full of data breach scandals, so this may be one to take with a grain of salt. Sorry Facebook, actions speak louder than words.
Currently, the burden is on copyright holders to flag copyright violations with tech firms, usually by placing them on notice under the DMCA. Usually, these firms will then take the appropriate action to pull the content if they find its in violation of copyright law.
With the new Directive, however, liability shifts—lying with tech giants to ensure their platforms are not open to copyright breaches, at all. Critics believe this would lead to controversial pre-filter systems, where content ranging from memes to GIFs are blocked from these online platforms.
Copyright filters are artificial intelligence algorithms that would ideally check every tweet, Facebook update, shared photo, uploaded video, and every other upload to see if anything in it was similar to items in a database of known copyrighted works, and block the upload if they found anything too similar. Companies like YouTube already have such mechanisms in place, with its “ContentID” system, which blocks videos that match content identified by a trusted group of copyright holders.
The European Parliament, in response, has said that this won’t be an issue—that memes, GIFs, hyperlinks, and snippets of articles will still be able to be shared freely.
Hollywood vs. Silicon Valley
The EU’s recent move with the Directive has been labeled as the battle of Hollywood against Silicon Valley.
On the tech side, Google and a number of high-profile figures, including Wikipedia co-founder, Jimmy Wales, have taken arms against the new EU copyright law. However, from the entertainment side of the world, famous artists like Paul McCartney and Blondie’s, Debbie Harry, have argued in favor of it.
The EU Parliament specified that uploading works to online encyclopedias in a “non-commercial” way, like Wikipedia, or other open-source software platforms, such as GitHub, will automatically be excluded. The burdens will of course be less harsh upon start-ups versus established platforms.
In order for the Directive to become European law, the majority of EU member nations must approve it at the European Council.
But, once approved, the Directive doesn’t automatically apply EU-wide. Rather, the Directive must be written into each individual’s country national law, with full implementation required by 2021–a two-year grace period, similar to how GDPR came about.