Really, people? The EU goes through a forty-year process to craft the most meaningful development in privacy law to protect individual privacy, trade, culture, and exchange on the internet against the Information-Industrial Complex, and then 20 months later passes a law that will dramatically strengthen the market position of….the Information Industrial Complex? In fact, the very provisions of the GDPR that guarantee the right of individuals to express themselves and control their digital presence are going to come into direct, near-immediate conflict with the new copyright regulation, which all but ensures, that’s right, the diminution of the right to free expression.
I’ll back up. The EU has been working on a modification of its existing copyright laws to address the challenges of new media and the proliferation of hosted content online. The US went through this process 20 years ago when it enacted the Digital Millennium Copyright Act (DMCA). The DMCA is not perfect, not by a long stretch (trust my experience on this one). But it protects hosting sites like YouTube or others that host user generated content or user posts more generally. For the most part, as long as the site polices boundaries as a general matter, it won’t be held liable for what users post. That’s why all those Hitler Rant Parodies stayed on YouTube (also: the Fair Use doctrine and other legal esoterica.). As I said, the DMCA isn’t perfect, but because the EU embraced a similar “mere conduit” approach to protecting hosting sites, the assumption was that the law of user-created content and posting had more or less been settled.
The EU’s approach, set forth in the Copyright Directive passed by the EU Parliament this afternoon, is slightly different, by which I mean deeply flawed and a substantial threat to a free, functioning internet. Article 13 of the new regulation imposes potential liability on content hosting sites for the materials posted by their users. In fact, it requires those sites to have filters in place to ensure that copyrighted material doesn’t make it online. Here’s the official text of the most important provision, for our purposes:
If no authorisation [for use of copyrighted material] is granted, online content sharing service providers shall be liable for unauthorised acts of communication to the public of copyright protected works and other subject matter, unless the service providers demonstrate that they have:
(a) made best efforts to obtain an authorisation, and
(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information, and in any event
(c) acted expeditiously, upon receiving a sufficiently substantiated notice by the rightholders, to remove from their websites or to disable access to the notified works and subject matters, and made best efforts to prevent their future uploads in accordance with paragraph (b).
I get the desire to protect copyright holders – they deserve to have their works protected, and they certainly deserve a fair royalty for their efforts. But using Article 13 of the Copyright Directive to protect copyright is like buying an airline because you like the free champagne in first class.
Yes, the law could impede the right of internet users to post hilarious memes (like the ones I use in this post, you’re very welcome). That’s the small stuff, and a distraction.In the US, we sometimes challenge laws for “overbreadth,” which means that they preclude lawful, protected conduct – free speech for instance. You can make it illegal to incite a riot or threaten the violent overthrow of the government, but you can’t make it illegal to simply advocate for a different form of government. Similarly, you can’t lie and say that a public figure is secretly selling secrets to the Canadians if you know it is false, but you can always say that you think a public figure is unduly influenced by a foreign government.
Article 13 doesn’t come out and ban protected speech, but it will almost certainly have a “chilling effect,” which unfortunately for you has nothing to do with Netflix. That’s when the threat of enforcement of a law is enough to deter people from exercising their rights or, as in this context, the threat of enforcement is enough to force businesses to censor the content they allow to appear on their sites. Why so? Because the potentially ruinous costs of defending against a copyright lawsuit is absolutely going to force businesses to err on the side of caution when they censor the material they allow users to post. Think not? Remember when the recording industry sued a bunch of teenagers for hundreds of thousands of dollars apiece for downloading pirated music?
But there’s a second-order problem here. Article 13 all but ensures that content hosting sites will need develop technologies to filter copyrighted material or hire scores of reviewers to examine posts. That will cost huge sums, far beyond the capability of most businesses to carry, and so they will have to either stop hosting content or buy licensed filtering technology from other companies.
Which other companies, you ask? I’ll give you a hint: they deploy tens of thousands of data scientists and machine learning experts to develop programs that fuel exceedingly profitable Platform-as-a-Service businesses, and they are the target of massive regulatory inquiry by the EU. That’s right: the Copyright Directive is going to directly fuel new sectoral growth for Google-Amazon-Microsoft-Facebook (and maybe Apple) as the content filtering police. This is, almost literally, a law of unintended consequences.
The EU has swiftly undone much of the good it achieved with the GDPR, and now ushers in enormous uncertainty about the freedom of expression in Europe and the economic position of thousands of small businesses. This was an own-goal of epic proportions, and one that has only just begun to leave us — literally and figuratively — speechless.