Is This the End of a Free Internet in Europe As We Know It?
The Directive on Copyright in the Digital Single Market, also known as the EU Copyright Directive, is a proposed European Union directive intended to give the European Union a singular and universal copyright law, while moving towards a Digital Single Market. The Copyright Directive was first introduced by the European Parliament Committee on Legal Affairs on June 20, 2018. Just recently, as of September 12, 2018, the European Union approved the directive and will enter formal discussions expected to conclude in January 2019. If ratified, each of the EU's member countries would then be required to enact laws to support the directive.
The EU says their main goal for pushing this directive through is to protect press publications, reduce the “value gap” between the profits made by internet platforms and content creators, and encourage collaboration between the two latter groups. This directive has gained a lot of media attention because of Articles 11 and 13.
Article 11, the “link tax,” and would require websites to obtain a license before linking to news stories. This specifically gives press publishers direct copyright over use of their publications by internet platforms like online news feeds. Some critics of Article 11 have said that this part of the law might stop ordinary web users sharing news stories, but the text of Article 11 does exempt individuals. It says that the new rights given to publishers “shall not prevent legitimate private and non-commercial use of press publications by individual users.” However, it’s not clear what counts as a commercial platform. What about blogs or RSS feeds that compile headlines like Google News does? What about a Facebook page that is followed by a lot of people? The other aspect of Article 11 that is unclear is what counts as sharing a news story? One amendment that was added to the directive says individual words or hyperlinks can’t be taxed, but how many words is that exactly and when do those words make up enough to be taxed?
Article 13, also known as the “meme ban,” requires websites which primarily host content posted by users to take “effective and proportionate” action to prevent unauthorised postings of copyrighted content and be liable for their users’ actions. The article further states that “storing and giving access to large amounts of works and other subject-matter uploaded by their users” are liable for copyright infringement committed by users. So, platforms and copyright holders must “cooperate in good faith” to stop this infringement from happening in the first place. The question now becomes how will this Article actually be enforced? The most effective, but controversial, enforcement would be implementing upload filters. Websites like Facebook and YouTube would be forced to scan every piece of content users share and checking it against a database of copyrighted material. The problems with having an upload filter are the filter would be subject to abuse, it would make millions of mistakes, and the technology for it simply doesn’t exist to scan the internet’s content in this way.
Most of the media attention facing Articles 11 and 13 is negative and widely critical. The Articles are opposed by over 200 academics from research centers, authors, journalists, publishers, law experts, internet experts, cultural institutions, internet users, civil rights organizations, and lawmakers. Google, which also owns YouTube, has opposed the directive since it was introduced. Executives from Google say the new rules would “turn the internet into a place where everything uploaded to the web must be cleared by lawyers.” In 2018 Google encouraged news publishers in its Digital News Initiative to lobby members of European Parliament on the proposals. Facebook is also opposed to the directive and released a statement expressing they believe the proposal “could have serious, unintended consequences for an open and creative internet.” A Change.org petition was also started to combat the directive and has gathered more than a million signatures. A few days before the parliamentary vote, Wikipedia also started a campaign against the directive. Members of the European Parliament who oppose the changes include Julia Reda (Germany, Pirate Party), Heidi Hautala (Finland, Green League), and Dan Dalton (UK, Conservative Party). Reda describes the law as large media companies trying to force “platforms and search engines to use their snippets and to pay for them.” Creators, however, are divided on this issue.
For the most part this directive is supported by mainstream newspapers, publishers, and the music industry. A campaign by the European Grouping of Societies of Authors and Composers collected a little over 50,000 signatures from creators in support of the directive, including one from world famous DJ David Guetta. Other famous musicians who support the directive include Paul McCartney and James Blunt. A different set of creators do not support this law - online creators. Cover artists and YouTubers like PewDiePie who use video games as part of their career, and artists who parody music. These are just a few of the creators who can be affected negatively from the directive and who have spoken out against it. YouTubers, like video gamer PewDiePie, used their platform to educate people on the directive and encouraging their viewers to get involved by calling their respective EU parliament members to vote against the law.
While Articles 11 and 13 have gotten the most attention so far, the new directive does also tighten up copyright in lots of smaller ways. There are concerns over how the directive treats text and data mining programs. This could apply copyright claims to automated scanners, for example. Another clause that was recently added to the directive would give sports leagues exclusive rights over any images or video of a game, making sports GIFs and photos taken by sports fans at games subject to copyright claims. This is the same for compilations, videos of people lip syncing to songs (like Music.lys), and many similar forms of media.
Alex Voss, a European Parliament member from Germany, is leading support for the bill in Parliament. Voss says companies like Google and Facebook are waging an unjust smear campaign against the directive. A coalition of European press publishers including the Press Association and the European Alliance of News Agencies issued a letter in support of the law. The publishers said the directive is “key for the media industry, the consumer’s future access to news, and ultimately a healthy democracy.”
The viability and constitutionality of versions of Articles 11 and 13 in the United States all depends on who you ask. Opponents of Articles 11 and 13 in the U.S. will be sure to cite the 1st Amendment as the reason why these articles would be unconstitutional. Putting these types of limitations on people’s creativity and on the press could set a dangerous precedent and it could definitely be seen as a violation of people’s right to free expression and free press. Proponents of the laws, however, would look to Article 1 Section 8, Clause 8 in our Constitution. This clause is known as the copyright clause and it explicitly states the legislative branch has the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
We also have specific copyright laws here as well. The Copyright Act of 1976 is our main foundation for a majority of U.S. copyright law and exceptions to copyright. The Act spells out the basic rights of copyright holders. The United States copyright law protects "original works of authorship," in a tangible medium including literary, dramatic, musical, artistic, and other intellectual works. This protection is available to both published and unpublished works. Our copyright law, however, is not as straightforward as people would think or want. For example, in U.S. copyright law there is this distinction called the idea–expression dichotomy. This protects the “expression” of an idea, but copyright does not protect the “idea” itself and this concept is fundamental to copyright law.
There is also the gray area of parodies and fair use. Fair use is the use of limited amounts of copyrighted material that does not qualify as copyright infringement. There are four factors that determine if something is fair use, but there really are no clear guidelines it really is a case to case basis. The four factors are: “purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; “the nature of the copyrighted work;” “the amount and substantiality of the portion used in relation to the copyrighted work as a whole;” and “the effect of the use upon the potential market for or value of the copyrighted work.” There is also another unofficial factor added on to that list: is the material in question highly transformative? Meaning, is it so different from the original work that it is fair use and cannot even be qualified as copyright infringement since it is so different. Fair use and the transformative nature of copyrighted work comes into question when dealing with parodies. Many musical artists, for instance, do not always like when shows or YouTubers parody them and their music. Back in 2013, YouTube parody creator Bart Baker made a parody of Lorde’s song Royals. Lorde’s team did not like this, filed a complaint, and YouTube took the video down for a few weeks. This instance called into question the issue of fair use and many people were critical of both Lorde’s team and YouTube’s response to them. Eventually YouTube put the video back up but these things happen frequently whether it be on YouTube, Spotify, Music.ly, and more platforms.
Recently, aside from issues of copyright, we now live in a world rampant with fake news, alternative facts, sensationalized news clips, and David Dobrik’s favorite - clickbait. Part of the EU’s reasoning behind the EU Copyright Directive was not just to protect artists, but they say also to protect people from buying into false news. Article 11 is intended to help prevent websites from using such false headlines that leave readers with the wrong impression once they scroll past it.
The EU Copyright Directive is still a long way from becoming law. The EU Parliament has to take it to the European Council, which represents the 28 countries in the Union, and then it goes to the EU’s executive body, the European Commission. The Commission will finalize the law and then send it back to Parliament, who will vote on whether or not to officially make it law in January. If it does pass, which seems likely right now, it then goes to each member state, each of whom have the right to implement the directive as it sees fit. It is possible that some countries may decide to implement it fully whiles decide to implement the law to minimize consequences. Nonetheless, free speech and free internet are at stake in this.