Directive On Copyright In The Digital Single Market

Our world, today, is shaped by the Internet. With the onslaught of the discussion about data privacy, it is seen how the Internet is used as a platform to shape people's mind and their opinions. The amount of content being consumed through the internet continues to rise every day. This includes videos, movies, photographs, and other forms of creative content. This level of connectivity and grasp over people’s lives allows any form of content to reach millions of people. It is the availability of such a huge audience clubbed with the advancements in the field of technology that have completely changed and continue to rapidly change the way in which copyright-protected works are created, produced, distributed, and exploited.

The laws governing Intellectual Property in various states, specifically the member states of the EU in this case, predates the rise of the internet and are not equipped to deal with creative works existing today. This is what the Directive on Copyright in the Digital Single Market aims to rectify. The Directive on Copyright in the Digital Single Market, more popularly known as the ‘EU Copyright Directive’ or the ‘end of the Internet’, was finally passed by the European Parliament on March 26, 2019.

The objective with which the Directive was introduced was primarily twofold. Firstly, as a measure to regulate the role of the Internet which has now become the main marketplace for the distribution and consumption of copyright-protected content, and secondly, to bring the copyright law regime in line with the new business models and actors that have emerged as a result of the evolution of digital technology.[1]

To fulfill these objectives, the Directive provides measures to elevate the position of the rightsholders by providing them the power to negotiate and be remunerated for the exploitation of their content by online services. In furtherance of such and in order to achieve a well-functioning and fair marketplace for copyright, the Directive states that “there should also be rules on rights in publications, on the use of works or another subject-matter by online service providers storing and giving access to user-uploaded content, on the transparency of authors' and performers' contracts, on authors’ and performers’ remuneration, as well as a mechanism for the revocation of rights that authors and performers have transferred on an exclusive basis”.[2]

The whole point of the Directive is to help spread the money more evenly between the people that make the content, such as musicians, journalists, etc., and the platforms that host and share that content but is now part of a boiling conspiracy, mainly because of its provisions dubbed as the “link tax” and the “upload filter”.

The Link Tax

Article 15 (previously Article 11) of the Directive provides the publishers of press publications with the right of reproduction and the right of communication to the public.[3]The The article is aimed at online services such as news aggregators or media monitoring services[4] and is introduced with the objective of enabling the press publishers to obtain a fair share of the value that their content generates and to ease their difficulties in licensing their publications[5].

Though exceptions have been provided for hyperlinking, private and non-commercial uses by individual users, use of individual words, and very short extracts of the press publications[6], the Article is severely criticized as of today. News is distributed not only through the traditional outlets but is plastered all over the internet, specifically on social media websites like Facebook, Twitter, and Instagram and on news aggregators like Google News. However, users of these platforms rather than reading the news articles glance at the headlines and brief descriptions to get a gist of the bulletin and then move on. A possible result of the implementation of the Article would allow the publishers to “tax” these platforms for those missed clicks which would in turn result in the users of the abovementioned platforms seeing less news on their feeds as it will cost money for it to appear there, which is completely opposite of the Directive’s objective of protecting the citizens’ access to information[7]. The Article has been greatly criticized for its lack of clarity on the issue of sharing the contents of the articles. If the Article applies to the title and excerpts of the text sources, millions of references in Wikipedia and other such sites would enter a legal grey zone, where it is unclear whether such referencing would need licensing. Not only this but it also greatly affects reference collections containing references to news articles. It all depends on the definition of “very short extracts”, which is unclear at the moment. Lastly, such a “link tax” would result in an internet dominated by large media corporations, since it would be nearly impossible for small media companies to survive due to lack of online exposure and revenue thereby having a negative effect on the citizens’ access to information.

Though it is true that the organizational and financial contributions of press publishers need to be recognized and further encouraged to ensure the sustainability of the publishing industry and thereby foster the growth of reliable information, but the uncertainty in the governing law works towards the detriment of that objective.

The Upload Filter

The online content-sharing services covered by this Directive are “services or platforms, the main or one of the main purposes of which is to store and enable users to upload and share a large amount of copyright-protected content with the purpose of obtaining profit therefrom, either directly or indirectly, by organizing it and promoting it in order to attract a larger audience, including by categorizing it and using targeted promotion within it”.[8]

Article 17 (previously Article 13) of the Directive makes the platforms defined above legally responsible for any copyright-protected content that they host. This forces the platforms to not only obtain authorization for any copyrighted content that they host but to also stop the content from being uploaded, i.e., communicated to the public, for which they are unable to get such authorization.

However, the article is silent on the mechanism to be followed by the platforms to screen and not allow the content to be communicated to the public. Critics of the Article argue that screening of the content before it is communicated to the public would force the platforms to perform automatic filtering of all content that their users upload through “upload filters” and therefore is an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation into a tool for automated surveillance of its users[9] resulting in a serious threat to the freedom of expression and privacy of the users[10]. Upload filters, like YouTube’s ContentID, have previously failed and can’t be perfected overnight to tell apart infringement from fair uses like a parody. As a result, non-infringing content will not be allowed to be communicated to the public, harming independent creators, and other unintended targets. With respect to the privacy of the users of these platforms, the Article also poses a surveillance risk. Due to the high developmental costs of the proposed preemptive screening of content and the unavailability of such service providers in the EU, the likely result would be that the content monitoring is outsourced to the US-based service providers, which are not governed by strong data protection laws such as the GDPR, giving them direct access to the behavior of all EU users of the internet platforms.[11]

Further, the costs involved in preemptively filtering content that may violate broad conceptions of copyright are likely to lead to concentration of content determinations in a small number of large platforms[12] and discourage investment in user-generated content startups, preventing EU competition to the targeted US platforms (who can well afford the costs of compliance), effectively locking their dominance[13].

Lastly, mandatory filtering technology that scans all uploads to a platform can be used for purposes other than just monitoring copyright infringement. Therefore, while intended to address copyright infringement, the above-stated Article would actually lay the groundwork for mass surveillance which threatens the privacy and free speech of all the internet users.

Conclusion

The Directive, which aims to bring the copyright regime in the EU up-to-date, has far-reaching effects and can change the way the Internet is used around the globe, mainly for the worse. Further, in light of the data protection scandals of Facebook and other huge tech companies, it is unfortunate to see that the privacy of the users is still not being given a major consideration before formulating laws regulating the Internet.