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Breaking The Internet: Will The EU Make The (Copy)Right Decision?

Breaking The Internet: Will The EU Make The (Copy)Right Decision?

In a dramatic turn of events, the European Parliament has voted against the first considerable update to copyright legislation in almost twenty years.

The proposed “Directive on Copyright in the Digital Single Market” was intended to harmonise aspects of copyright law across EU member states and has fostered much public debate since its inception. Although approved by the European Parliament Committee of Legal Affairs in June, the proposals were narrowly defeated by 318 votes to 278 when they went to the European Parliament on 5 July 2018.

Despite opposition to the proposals hailing the rejection as a major victory, the vote merely delays the final decision and provides policy makers with more time to refine their proposals before they are debated again in September. If approved, the consequences will be far reaching across all digital platforms.

The current law: notice and takedown

Current rules protect internet platforms, such as Amazon, Twitter, Facebook, YouTube, eBay and Instagram, from liability for what appears on their site until they are notified – at which point, they are then required to remove any illegal content.

However, policy makers have now begun to challenge this passive approach and the proposals aimed to introduce a more proactive regulation to provide greater protection to content creators.

The proposals: what could change?

The proposals have incited a fierce clash of opinion. Supporters, such as media groups and publishers, praise them for providing content creators a means of fair remuneration for use of their work online. However, critics have raised concerns regarding the costs and effectiveness of implementation and the potentially adverse effects on free speech.

Articles 11 and 13 of the proposals have proven controversial and have attracted the most criticism.

  • Article 11: The ‘link tax’ – aims to prevent online content aggregators from sharing links without paying for them and would require publishers to obtain a licence before linking to published news articles and information.
  • Article 13: The ‘upload filter’ – would require providers to proactively monitor and filter uploads on to their platforms to identify any copyright infringement and prevent its upload. This marks a significant shift in responsibility with providers responsible for preventing the content from appearing on their site in the first place, rather than simply requiring them to take it down once notified of an infringement.

Key criticisms of the proposals

Elimination of some forms of creative work

Although primarily intended to prevent the online streaming of pirated music and video, Article 13’s broad scope could cover any copyrighted material – including images, audio, video and text. The stringent new protections could prevent the sharing of content such as memes, remixes and parodies which (while themselves being original and creative works) are often developed from other people's original content.

Technological issues

If being uploaded at any kind of scale, the content filtering requirements could only reasonably be fulfilled by automated systems - such as YouTube's "Content ID” – which are very expensive. Consequently, independent creators and small businesses who want to provide a content sharing platform will be hindered as they are unlikely to possess the systems themselves nor sufficient resources to develop them.

Content recognition is unlikely to be sophisticated enough to accurately identify and distinguish problematic uses of copyright material from allowed uses, meaning false positives are likely to be detected.

Restriction of free speech

Online expression and free speech may be restrained with users ultimately being prevented from posting images, songs, videos, and by-products (such as parodies) in cases where they include some unprotected elements of a protected work.

What next?

MEPs will now look to rework their proposals before a fresh vote in September.

While there is undoubtedly a need to ensure that content creators receive fair remuneration for their work, the Directive, as proposed, is not the right solution. We will have to wait to see how Parliament propose to rework the current equilibrium to maintain a balance in copyright protection that is workable for all.

By Colin Hulme

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