On March 26, 2019, the European Union voted in favor of making sweeping changes to its copyright law and passed the Copyright Directive (the “Directive”). While the existing laws have not always kept up with the Internet’s use and capabilities and a reassessment of the effectiveness of old regulations to protect intellectual property rights is warranted, the Directive is a bold move that opponents are warning will ultimately result in online censorship. Under the new law, American companies like Apple, Twitter, Facebook, Google, and YouTube will likely have to pay European copyright holders more money for licenses to share their content and enact measures to keep works shared without permission off their sites. Introduced back in 2016, the Directive contains two Articles in particular that have attracted heavy scrutiny.
Article 15 of the Directive aims to protect news organizations whose content is disseminated on the Internet. Under the new legislation, these news organizations would be protected to ensure they are paid fairly for their content. The reproduction of more than “single words or very short extracts” of news stories will require a license. For sites that share these news stories, the Directive forces them to get licenses from the news organizations to continue sharing the stories. Google has already suggested that it may have to pull its news aggregation platform Google News from Europe as a result of the Directive.
Of larger concern is Article 17. Presently, it is up to copyright holders to flag potential infringement to digital service providers who then remove the content if the providers can confirm that there is no license to share the content on their site. Under the Directive, a company that hosts a platform for sharing content will need to actively prevent the uploading of infringing material. Article 17 puts the onus on tech companies like Twitter, Facebook, and YouTube to ensure that their platforms are not open forums for posting materials that infringe third parties’ copyrights. The Directive tasks these companies with sifting through voluminous content and ensuring legal use and access to that content before it is posted. The Directive’s requirements could have the impact of significantly reducing the amount of content posted by digital service providers. Those sites and online platforms that do not comply with the Directive will be liable for the copyright infringement of their users and will likely be hit with hefty fines.
Alternatively, digital service providers could instead go the equally expensive route of obtaining licenses to ease the stress of allowing its users to post content to their sites. While artists and media companies who hold these copyrights applaud the Directive as a means to protect their intellectual property rights and as a means to monetize the sharing of their content online, the new active role that digital service providers will have to take under the Directive could have significant consequences.
US companies like Apple, YouTube, Twitter, and Facebook have cause for concern. These sites host large amounts of user-generated content over which they are already responsible for taking down content that infringes copyright. Google previously spent around $100 million to develop Content IT, a system used to scan all videos uploaded on YouTube. Content ID matches the videos posted with copyrighted videos in its databases as a means to prevent posting videos in violation of intellectual property rights. However, there is no guarantee that Content ID or similar systems will work to accurately identify copyrighted works. This could put tech companies in the position of having to delay or even halt the dissemination of content where the rights cannot be easily established so as not to violate the Directive and be subjected to fines.
Article 17 is so controversial that its complete exclusion from the Directive was also put up for vote but failed to pass the European Parliament by only five votes. With the Directive’s passage on March 26, 2019, the next step is for ratification from the European Counsel. Because this is a Directive and not a regulation, it does not automatically apply the same way across all EU member states like we saw with last year’s General Data Protection Regulation (GDPR) privacy law. Instead, each EU member state will have to individually figure out how to implement the law over the next two years. It can therefore be anticipated that there will be further battles on the individual state level and several years to see how Europe’s creative and digital economies will work within the restraints of the Directive.