By Jimmy Quinn
Tuesday, June 26, 2018
In the clickbait version of the story, the proposed EU
Copyright Directive would kill memes.
It would. And it would have more pernicious effects as
well.
The directive advanced through the European Parliament’s
Legal Affairs Committee last week; early next month a plenary session of the
parliament will vote on it. If it passes, the legislation will move to a
reconciliation process with other European institutions that could conclude by
the end of the year. Should the policy survive that step as well, EU member
states would implement it over the next few years. This would be an unmitigated
disaster.
Proponents of the legislation argue that online companies
are taking advantage of traditional publishers. The rapport between traditional
newspaper companies and Google provides a pertinent example: Last year the
search giant ended a “first click free” policy that required publishers to
provide readers three paywall-free articles if they wanted their stories to be
displayed in search results. Following backlash from publishers, the policy was
reversed.
While content creators are one of their crucial
constituencies, the platforms — which set the rules of play and attract
massive, indispensable audiences — hold all the power in the digital world. The
directive seeks to rebalance this asymmetrical relationship by making copyright
infringement online more difficult and by ensuring compensation for content.
It’s an attempt to establish a semblance of order in the digital Wild West.
Article 13 of the proposed directive creates incentive
for digital platforms, such as Google and Facebook, to implement “upload
filters” to keep out unlicensed content. As EU copyright law currently stands,
companies are liable for unlicensed content uploaded to their platforms only after they have been alerted to the
violation. However, under the Copyright Directive, companies would be liable
the moment that delinquent content was uploaded. Since platforms couldn’t
possibly police uploads manually, they would have no choice but to develop filters
that immediately identified and blocked copyright-infringing content.
Experts worry that these filters would overreach in order
to protect companies from litigation. Content that falls into a “gray area,”
where copyright infringement is possible though not certain, would be blocked
out of an abundance of caution, opening the possibility that platforms would
censor legal content. Needless to say, this is undesirable.
Maud Sacquet, a senior manager of public policy at CCIA
Europe — the industry group that represents Google, Facebook, and other tech
companies in Washington and Brussels — tells National Review that “the problem with filters is that they do not
recognize parody. . . . To know whether something is a copyright violation you
need to understand context.” In other words, satirical content that modifies
copyrighted material yet does not infringe on copyright protections could well
be blocked.
YouTube has spent many years and countless millions of
dollars to develop its own upload filter — called “Content ID” — which is
perennially assailed by online video creators as a barrier to their work. Prone
to mix-ups that deprive YouTubers of ad revenue, difficult to appeal, and
subject to copyright trollery, the Content ID system makes a mess of protecting
proprietary content. At Vice, Cory
Doctrow puts it succinctly: “The EU proposal doubles down on this failed,
$60,000,000 American corporate boondoggle and turns into European law, but
expanded to every kind of copyrighted work.”
Clearly, developing upload filters costs quite a bit of
money. Like the EU’s recent GDPR consumer-privacy regulation, the Copyright
Directive would raise costs, forcing big platforms to direct legions of lawyers
to guarantee compliance while driving small competitors out of business or away
from the continent. This in addition to the chilling effects on speech these
filters will necessarily have.
Another provision that would limit access to content is
called the “link tax”; it would essentially require platforms to compensate
content creators each time their work is shared. While copyright law already
prohibits the reproduction of content in full, the directive would ban or limit
the short snippets of text in link previews found on search engines and
social-media sites in the absence of a licensing agreement. This would obscure
user awareness of what’s behind the links they see, likely depressing traffic
to the linked websites.
Julia Reda, a Green-party member of the European
Parliament from Germany, has seen this movie before. She has spearheaded the opposition
to this legislation and compares the link tax proposed with measures enacted in
Germany and Spain a few years ago. When Germany passed its link tax in 2013,
the decline in traffic to media sites was so pronounced that many publishers
simply let Google publish their article snippets without a licensing fee. The
publishers, however, did not extend this licensing agreement to Google’s
smaller competitors — and to this day, searches on the German version of
Yahoo’s news service yield results with short headlines and no article preview.
When Spain enacted a stronger link tax in 2015, Google
simply terminated its news feature in the country; this was fine for larger
publishers who could count on continued traffic, but smaller websites faced a
digital drought. While El País, the
largest daily in Spain, should count itself among the beneficiaries of such a
provision, it spoke out against the European-level proposal in an editorial
that says it “suffocates the process of digital transformation.” Indeed, a study
commissioned by a Spanish publishing trade group found that the consequences of
the measure are “unevenly distributed, affecting primarily small or
lesser-known publications such as native digital newspapers.”
This is why Sacquet says the directive “will be
detrimental to the freedom of expression, creativity, innovation online, and
globally speaking, to the European digital sector.” Link taxes have
consistently been shown to harm small media outlets and platforms.
The digital sphere is undergoing a renegotiation of the
terms of power between old and new media. By pushing back against the new
sources, however, champions of old media in the EU have overplayed their hand,
resulting in a regulation that will almost certainly harm the very industry it
was conceived to help. This is important because the debate over how best to
mediate between the new and the old in the digital realm holds repercussions
that will be heard far beyond the European Union; the failure or success of
this gambit and the effects that follow will enlighten future attempts to
regulate technology companies.
Publishers often have a legitimate case when they argue
that platforms are free-riding on their work and coercing them to act against
their own interest — look at the free-click policy that Google tried. However,
the provisions advanced by the Copyright Directive are clumsy and dangerous.
What would instead be prudent is dialogue; big media needs big tech and vice
versa. Heavy-handed regulation like this only freezes out the little guys and
limits online speech.
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