In 2016, the European Union (EU) proposed the first draft of what has grown to become a rather controversial Directive. This Directive has come to be known as the “Directive on Copyright in the Digital Single Market” or simply the “EU Copyright Directive”, but will be referred to as the “Directive” for the purposes of this Article. It has since been amended numerous times and as of the 26th of March, 2019, it has been passed by EU MEPs voting 348 in favour, with 278 opposed. The aims of the Directive are threefold: a) to reduce the value gap in profits between Internet Platforms and content creators; b) to encourage and improve cooperation between the two aforementioned parties; and c) to create copyright exceptions for text and data mining. Although the Directive is intended to create more streamlined and effective regulation and protection of intellectual property in the EU, two particular areas of concern and controversy have been Articles 15 and 17 (these Articles used to be known as Articles 11 and 13, respectively, but have been renamed to Articles 15 and 17 in the final Trilogue draft).
Article 15 (ex 11) – the ‘Link Tax’
Article 15 has been dubbed by critics as the “Link Tax” due to its proposed implementations. The Article is intended to give publishers/owners of a website the opportunity to profit on the use of their website when anyone uses the link (also referred to as a ‘URL’) to their news stories, while showing a snippet of their content. This means that if, for example, Google News was to reference a snippet of a CNN news article with a thumbnail, which a user can click on, Google would need to provide CNN with licensing fees. Noteworthy, however, is the fact that the EU made sure to include exemptions, such as the use of hyperlinks by themselves and the usage of a URL by individual users “for legitimate private and non-commercial use of press publications”.
However, critics have argued that the Article is a cause for concern due to its wide scope. Looking at the hyperlink exemption as an example: if a person were to post a link on Facebook, there would no longer be a thumbnail picture and short excerpt with the title of the article, as this would now most likely require a license. Instead, it would just be a blue URL (i.e. a hyperlink) that an individual can click on, and in most cases this individual would unlikely do so without knowing the destination of the link. This also poses another issue in that a vast amount of websites generate income through ad revenue, which derives from the visitors of the site in question being displayed ads during their time on the site. If people are less likely to visit a site as a result of the site no longer being displayed in thumbnails and other such excerpts, then this will generally lead to a dip in the ad revenue accumulated. Granted, there will be a new source of income in the form of licenses, but many people and companies may look to avoid obtaining a license if possible and will likely try to find a workaround.
Another argument that critics have is that since the copyright of published work will have a twenty year lifetime, Article 15’s implementation will make the last two decades’ worth of online news and published work less accessible to the public unless a license is obtained, which can be a time consuming and expensive ordeal. In fact, Sparc Europe, an avid critic of the Directive, has claimed that Article 15 would “in effect ask readers to pay publishers for access to works for which authors, institutions or research funders had already paid publishers to make freely accessible to all under ‘open access’ terms”. The general fear surrounding Article 15 is that it will do more harm than good.
Article 17 (ex 13) – the ‘Upload Filter’
As with Article 15, Article 17 has also been given a name by critics, which is this time around, the “Upload Filter”. This is because Article 17 requires internet platforms which host large amounts of user-uploaded content, to monitor their users’ behaviour and identify and prevent any copyright infringement. Should these large internet platforms fail to recognise and pull down the type of media that is infringing on a copyright, they could be liable themselves. This means that if you were to upload a video on YouTube, for example, and that video was an explanation of the brushstrokes of a particular artist whose paintings you include in order to illustrate your point, your video could potentially be taken down on grounds of infringing the artist’s copyright. This is because YouTube would rather not risk being liable for the potential infringement that could arise if they were to leave your video uploaded. The extent of the Article does not stop there, however. Pictures appearing in Google’s images results may also be affected and may become far more limited, since a vast amount of these images will be taken down due to copyright infringements.
Critics have argued that Article 17 is a massive step away from the open source and liberal internet that we currently have, in that it places constraints on the public and the accessibility that they may have. In fact, another school of thought is that videos on YouTube, for example, will not be taken down entirely. They will just be made unavailable to EU citizens, in the same way that some videos you may have seen on YouTube state that “This video is not available in your country”. Some content creators could even make their videos unavailable to EU citizens pre-emptively in order to avoid the risk of being taken down. This would greatly limit the number of videos that are made available to EU citizens, and could even encourage the use of VPNs (Virtual Private Network) in order for users to hide their IP addresses and make it seem as though they are surfing the internet from any continent outside of Europe, in order to get access to these ‘copyright infringing’ videos. In fact, Google have themselves gone so far as to say that Article 17 “would effectively turn the internet into a place where everything uploaded to the web must be cleared by lawyers before it can find an audience”.
The EU Parliament intends for online content sharing service providers to constantly monitor uploads in order to ensure that no copyright infringements exist. While this sounds viable in theory, the practical aspect will prove to be less than ideal. Parliament has encouraged these providers to look at YouTube’s Content ID algorithm as a model template for how they should go about their monitoring process. YouTube uses its Content ID to monitor newly uploaded material and decide whether it infringes on their many policies or not. However, YouTube spent years to develop their algorithm and it cost about $100 million to create, which most businesses will find immensely difficult to follow. Even if they were to follow it as a template, it is worth noting that Content ID is not perfect, as there are still many false hits which then need human input to be corrected. The need for corrections is only logical however, once taking into account the fact that every minute there are over 400 hours of content being uploaded to YouTube, which then must be scanned by Content ID. With Article 17, however, Content ID will undoubtedly have more criteria to focus on, as opposed to their current copyright areas of focus. It will have to filter through videos with more aspects to focus on, which will likely lead to even more false hits, and thus, more work and kinks to iron out.
The Directive’s introduction and subsequent finalisation has caused a mass panic of sorts in Europe as well as in other continents, as the Directive’s requirements will affect businesses all over the globe. It does not come as a surprise that many oppose the Directive’s implementation (even if it is mostly because of the impact of Articles 15 and 17) due to the potential consequences, both intentional and unintentional. The opposition that the Directive faces comes from various avenues and arguably the most significant is a change.org petition, which has, at the time of writing of this article, reached over 5.1 million signatures – the most of any online petition ever. Nevertheless, Parliament passed the Directive, which means that once finalised, Member States will have until 2021 to implement that Directive into their respective domestic laws. As such, the Directive has been and will remain, one of the most talked about and contemplated laws of the recent past; it is a matter which simply cannot be ignored.