GUEST POST: ANUSHA DAS- EU’S NEW COPYRIGHT DIRECTIVE- A BOON OR A BANE

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I am pleased to bring to you our next guest post by Anusha Das, a final year student at Rajiv Gandhi National University of Law, Punjab. Anusha has keen interest in copyright, trademark and media laws and enjoys keeping close tabs on developments in the field.  In the course of her previous internships she has taken strong hold on IPR as a subject and worked on a diverse array of IP matters.

In this post, Anusha analyses the pros and cons of the EU Copyright Directive, the controversies surrounding it and its impact on EU residents and non-residents as well as India’s take on the Directive so far.

EU’S NEW COPYRIGHT DIRECTIVE- A BOON OR A BANE

As YouTubers, bloggers, online influencers and as users of platforms such as Facebook, Instagram and LinkedIn we have always read, liked and shared content such as songs, videos, articles etc. from various sources. Many of us may have even created memes of famous dialogues or scenes from movies or TV shows which have been shared by millions of people across the world on various platforms. But very soon it may happen, that the content that we all share could be taken down due to copyright issues as according to the new EU Copyright Directive.

WHAT IS THE NEW EU COPYRIGHT DIRECTIVE?

  • The Directive on Copyright in the Digital Single Market or popularly known as the EU Copyright Directive, is basically a proposed Directive of the European Union intended to harmonise copyright laws across  the European Union and to aim towards a Digital Single Market.
  • On September 12, 2018, the European Parliament green signaled the revised version of the Directive.
  • Interestingly, on June 05, 2018, the European Union, had rejected the controversial Directive with a majority vote of 318 members of the European Parliament voting against the Directive and 278 favoring it.
  • However, in the second voting, (September 12) the Digital Copyright Directive was approved by the European Parliament with 438 votes against 226 and 39 abstentions.
  • But, this will not decide the final fate of the Copyright Directive. The Directive is currently being debated further in what are known as “trilogue negotiations” (closed door-discussions between EU legislators and member states).
  • After trilogues, a final voting on the Directive would take place. There has been no time period fixed officially as to when the voting will take place but it is likely to happen sometime between December of this year and first half of 2019.
  • If the Directive gets approval in the final voting, then all of EU’s member countries would be required to create their own form of legislation in line with the Directive.

WHY IS THERE SO MUCH CONTROVERSY AROUND THE DIRECTIVE?

Most of the conflict of opinions are revolving around two parts of the Directive: Article 11 and Article 13.

Article 11 – the link tax – directs Google (Google News) , Facebook  and Twitter like sharing platforms to pay to original content authors and publishers every time they publish their headlines or use their links.

Article 13 – the “upload” filter – requires digital media platforms such as Facebook, Twitter and YouTube to seek licenses from artists before publishing any form of content and also make them liable for the content uploaded on the website that infringes copyright.

  • Exemptions

However, the Directive exempts small startups and platforms from its rules. The Directive also exempts “hyperlinks” or “individual words” from taxation.  It also clarifies that the new right given to publishers however “shall not prevent any legitimate use or commercial use of press publications by individual users”

It seems that the European Parliament has sent a clear message to the rest of the world that copyright laws needs to be modernized to clarify obligations of platforms with regard to the creative work they display or distribute.

Both the measures attempt to narrow the gap in the amount of money made by big platforms such as Facebook and Google News who by simply providing access to content made by different people generate huge amount of revenue while people who are actually making the content get a minimal slice of the pie. According to the International Federation of the Phonographic Industry, YouTube exploits it dominant position in the digital space and pay music companies 20 times less than what should be a “fairly licensed service”. As a comparative example, Spotify and Apple pay $22 dollars a year per user to the industry, whereas, YouTube pays less than a $1 dollar per user. The Copyright Directive aims at levelling the playing field.

Europe’s biggest news agencies had urged MEPs to vote for the law, as they have accused Google and Facebook of “plundering” the news and their ad revenues since decades. “For the sake of Europe’s free press and democratic values, EU lawmakers should press ahead with copyright reform,” said a statement signed by 20 agencies, including the Press Association and Agence France-Presse.

Companies like Google and Facebook, on the other hand, had collectively protested against the Directive claiming that it would have a spine-chilling effect on small startups. They had also argued that it will not only restrict the potential reach of all content but also discourage people from creating more content. The Italian Wikipedia had even disabled all searches and contributions from 3 July- 5 July 2018 and displayed a site-wide banner to support the protest.

IS THE DIRECTIVE GOING TO BE A BOON OR A BANE!?

The Directive definitely aims at making the digital world a better space for content creators and publishers but it also needs a lot of clarifications without which it would only lead to its abuse. For example Article 11 does not clear as to what counts as an online platform or a commercial platform or what exactly denotes as sharing or linking a story or what if any blog or RSS feed aggregate headlines in similar way as that of Google News or what if a Facebook page handled by an individual or group of individuals have a huge following.

Again, the Article, even though, it specifies that mere hyperlinks or “individual words” cannot be taxed but it does not clarify the number of words or how many individual words constitute a snippet.  This tax exemption if observed does not serve any purpose in reality as no one actually clicks on an URL unless it includes a brief description as to what it is linking to.

Critics have also claimed that it is not possible to implement this law on a uniform basis because every country has their own rules and regulations with respect to copyright. They have also said that such a legislation may backfire because companies such as Google or Facebook might just simply shut their operations in that country owing to high cost.  Back in 2014, a law was passed in Spain where publishers were compelled to charge news aggregators for displaying their news snippets and Google in reaction shut down Google News. A similar law was passed in Germany in 2013 and Google stopped sharing content of those who would charge fees.

Article 13 needs way more clarifications than Article 11. It says platforms “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. The difficulty with this Article is again the enforceability. If the Directive gets formalized, then sites like Facebook and YouTube would be forced to scan every piece of material that users upload against an updated database of copyright material but the Directive is not clear with respect to what technology is to be used as a “scanner” or as an “uploading filter”. Critics have even claimed that such a technology doesn’t exist and if it does it is bound to make mistakes as no algorithm machine can efficaciously scrutinize creative content.

Clarification with respect to memes and parodies are also required. There are two concerns: Firstly, exceptions or limitations to copyright law differ from country to country in Europe, some countries have an exemption for memes and parodies while others don’t. Secondly, even if they are made legal, how would the “uploading filter” or “scanner” make out if the meme or parody is an infringing material or not.

Similarly, how would it respond to any reaction GIF made from any popular movie or any TV show. High chances are such that it will not be able to differentiate and will bring it down.

Mistakes and complications are bound to arise if the above issues are not addressed. A large number of applications would be filed to reverse any content that has been taken down. This instead of making the process easy would make it more complicated and lengthy.

IN WHAT WAYS IS IT GOING TO AFFECT COMPANIES LIKE FACEBOOK AND YOUTUBE?

  • It will compel social media platforms to take more direct responsibility for policing uploaded content.
  • Big tech companies will have to incur high cost for creating and installing high end content identification like YouTube’s Content ID System.
  • Smaller companies maybe might have to adopt a more centralized operation.
  • It would also prevent such companies from showing any form of news “snippet” which will make it difficult for them to share or link to content.

From economic perspective, the idea of content recognition system does not seem to be capable of working successfully in the long run as the cost of creating such “upload filters” or “scanners” is very high. “YouTube had already spent $60m (£46m) on a content identification system”, said El Ramly Siada, director general of EDiMA, a Brussels group who represented Facebook, Google and other internet platforms “It is a very big cost to take on board, and it is not a one-off – it is something that needs to be maintained.” She also added that filters “won’t be able to discriminate whether it is a commercial business or an individual putting the content up … it is not infallible and mistakes will be made.”. According to a report announcement made by YouTube executives in 2016, the content identification system had identified enough misuse to shed out more than $2 billion to copyright holders which is double if what it had announced in 2014.

HOW WILL THIS AFFECT ME, AN EU RESIDENT?

It might limit your freedom of expression and access to information. Everything that you upload on the Internet would be checked against an updated database for copyright infringement. So this may mean no more making memes or using edits from your favorite movie or TV show, among many other things!

It could also mean the end of many of your favorite new aggregation tools or apps because readers need to know what a link leads to before clicking. Sites almost always include a snippet of the content it is linking to as part of the link. It would just not restrict businesses but also individuals who publish news snippets for example: bloggers.

HOW WILL THIS AFFECT ME, A NON EU RESIDENT?

Each country is governed by its own copyright laws and rules. Unless the directive causes the major internet companies to make a huge fundamental change in their operations, you might not be affected.

But if you are a fan and ardent follower of British humor or Europe’s take on popular memes and parodies, chances are that your internet experience might become slightly boring.

WHAT HAS BEEN INDIA’S TAKE ON THE DIRECTIVE SO FAR?

There are already difference of opinions. Speaking to Inc42, Parveen Singhal, co-founder and chief content officer at content marketing platform WittyFeed, said, “Indians are by nature outspoken and love coming up with such humorous content. Our inboxes are loaded with memes, jokes, and funny content pieces that are published on these platforms. However, this Directive is a direct challenge to the open world and open Internet and shouldn’t be implemented.” He has also further added that the provisions of the draft European Copyright law challenges a fundamental digital right by restricting such platforms to share content.

Blaise Fernandes, President and CEO, Indian Music Industry, however, has a different viewpoint. While speaking to Music Plus, he has commented, “If we have a legislation like Article 13, then India’s Vision 2022 could be Vision 2020”. It is safe to say that if the Directive gets approved next year, we can surely expect a lot of debates revolving the same.

If social networking sites make changes in their operations to make it in line with Art 13, there is one additional issue that Indian users might face. India despite having such a huge number of users which is increasing by the day still has a very slow internet speed as compared to the West. So, it may happen that uploading any content on the Internet may take way more time than it does now if the Directive gets approved. Imagine a situation when you upload a picture on Facebook or Instagram and it says that it will take another few hours to confirm whether it infringes any copyright or not !

CONLCUSION

According to the Copyright Directive proposal presented in the European Parliament on July 05, the aim of the Directive is to protect original content and to make sure that artists as well as news publishers and journalists are adequately paid whenever their work is used by platforms like You Tube or Facebook and news aggregators such as Google News. The Directive is undoubtedly proposed with good intentions, but if passed in its current form it will definitely be abused for being so vaguely worded. Julia Reda, Member of the European Parliament has commented on this issue saying, “The methods to address the issue are catastrophic and will hurt the people they want to protect”. Exactly, how the Directive is to be interpreted is on individual nations but a shift in the balance of power between world’s biggest web tech companies and original authors and publishers is definite if the Directive gets the approval.

Internet’s content is shared and uploaded worldwide regardless of its origin Thus, the Directive will leave an impact on the internet space and users of just not the European Union but also on users of the internet across all countries.

Though nothing immediately, but if the Directive is adopted by a major player like the European Union, other countries may consider adopting similar laws to protect its content creators. Coming to India, with the digital content market rapidly increasing along with growing smartphone user base, India may also have to look into considering the same but all depends on whether the Directive gets approved next year or not.

Image source: here