Intellectual Property

The EU #SaveYourInternet Campaign Failed; Goodbye Online News And Memes?

The EU’s new Copyright Directive takes aim at online linking and will require online platforms to filter content.

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The Internet that we have all come to know and love has facilitated search and discovery and allowed us to find news on pretty much any topic in the world, sometimes even when that news is written in other languages. The Internet has brought us memes and remixes, promotes new creators, and allows new ways of sharing content. But all this could quickly change due to the EU’s new Copyright Directive that takes aim at online linking and will require online platforms to filter content.

On September 12, 2018, the EU Parliament voted in favor of a new Copyright Directive which includes two highly controversial provisions with respect to online linking (Article 11) and filtering (Article 13). The Copyright Directive was originally introduce in 2016 and has gone through many changes before passage of the current version, with 438 members of the EU Parliament voting in favor, 226 opposing, and 39 abstaining.

One of the most troublesome provisions, Article 11, requires a “link license” which operates as a “link tax” to share links from news sites. Online services using links that include a snippet — meaning more than two consecutive words from the article’s headline — must have a license to be shared. The Copyright Directive leaves much undefined, however, such as what is a news site or exactly who this rule will apply to. Certainly it will impact Google and other search engines, but it may have far broader reach. Can a service include a link to a blog post, for example? If I want to criticize an op-ed, can I include a link to that op-ed in my commentary or do I have to pay a tax?

Another unintended consequence is that Article 11 may actually give a boost to fake news. While news outlets may indeed demand a license fee for links, creators of fake news may have different objectives allowing the use of links to its content for free. Article 11 may see greater proliferation and sharing of fake news, limit links to reliable and traditional news sources, and impede fact-checking sites.

A similarly controversial provision of the EU Copyright Directive could impact user-generated content, including memes, remixes, and incidental uses of copyrighted material. Article 13 would force online providers to create upload filters and detect whether content that is being uploaded matches a copyrighted work. If it does, the platform must filter out that content and prevent it from being uploaded, a system EU Member of Parliament Julia Reda has called “censorship machines.” The problem with automatic filtering is that these systems are unlikely to be able to determine whether content is infringing copyrighted content or whether it’s a permissible reuse, like memes or other parodies. It’s much easier to filter out any content that matches copyrighted content than have to determine whether it was made under a permissible copyright exception, particularly since the latter would likely require human intervention rather than an algorithm.

At the end of the day, Reda is right and Article 13 will result in censorship, stifling freedom of expression. Automatic filters aren’t savvy enough to determine whether a short clip of a song in a video of a dancing baby is a fair use or whether a meme is a permissible parody. But Internet users will no longer be able to post and share these items if they’re caught up in upload filters. Because of the way these databases to check for copyrighted material will be created, there is nothing to prevent non-copyrighted, public domain materials from being captured in these systems as well. All around, Article 13 will be highly problematic for any user-generated content.

While some have suggested that these new copyright rules are aimed at big tech platforms like Google or Facebook or Twitter, ultimately these provisions will have a greater negative effect on small startups that cannot afford to pay link taxes or build databases to ensure compliance with upload filtering rules. While large technology companies have opposed such provisions and there is no doubt that they will have to pay a cost for compliance, Articles 11 and 13 will only serve to strengthen the existing tech giants who can afford these costs and eliminate startup competitors.

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A number of creators have supported the EU Copyright Directive under the assumption that stronger copyright protections will improve their livelihood. However, as Grammy-award winning musician Wyclef Jean has noted, such efforts harm the way the Internet operates today. Jean opposed the EU Copyright Directive, encouraging policymakers instead to “embrace and improve the Internet, rather than attempt to block and hinder it.” Encouraging artists to embrace the remix culture, Jean notes, “It’s far more beneficial for me to embrace the community that is remixing my art, to set my own rules about how my work is used, and to embrace the shared creativity and profits that come from it. It wasn’t easy for me to adapt my thinking, but today I work with a number of online services to give fans what they want while still getting paid.”

In the end, Articles 11 and 13 of the EU Copyright Directive are lose-lose-lose — it will harm everyday users who will no longer be able to receive content like news in the way they have become accustomed, it will harm the small creators’ freedom of expression who are trying to share user-generated content, and it will create greater barriers to market entry thereby impeding new technology companies and platforms.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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