EU’s Copyright Reforms, Part 1: Sharing Copyrighted Material on the Internet

Authors directly affected by piracy may have reason to celebrate, but the proposed restrictions on the sharing of copyrighted material may backfire for others

Last week, the European Parliament took another step toward reforming its Copyright Directive, legislation intended to update copyright law for the digital age. These reforms directly target big tech firms, such as Google, and have been criticized by Silicon Valley and early movers and shakers of the internet, such as Tim Berners-Lee.

Articles 11 and 13 directly affect writers and publishers and are also the most controversial. Article 11 (called the link tax by critics) gives intellectual property owners the right to get paid when their content is linked to or shared by online platforms. Article 13 (referred to as the upload filter) makes platforms liable for any copyright infringement occurring on their platform.

First things first: These changes haven’t been implemented yet. The legislation is not final and it has not been passed, although it is expected to pass in some form. Furthermore, each EU member nation must decide how to implement this directive, and legal struggles will likely follow.

So, what do individual writers, journalists, or authors need to know about these changes? Again, the situation is still developing, but here is the current understanding.

• The Copyright Directive exempts individuals; the intended targets are large tech platforms and aggregators like Google. So for now, it appears that you can keep sharing links to stories however and whenever you like on social media or at your own website or blog. There are also exemptions for small businesses, noncommercial and educational efforts (such as Wikipedia), and so on.
• The Copyright Directive intends for platforms like Facebook, Twitter, and YouTube to vet or filter shared content to prevent copyright infringement. (Note that this doesn’t apply to cloud services for individual users, such as iCloud or Google Drive.) It remains uncertain how, in practice, distinctions will be made between serious infringement (full-on piracy) and frivolous (a meme)—and if filtering technology is up to the task. Critics also worry the law will be misused and turned into a weapon (e.g., to take down material even if it abides by fair use).

It is possible that some platforms will geoblock Europe if they find honoring the Copyright Directive too onerous. This has already happened on a smaller scale as a result of GDPR, EU’s privacy regulation (which we wrote about here): some US websites have blocked EU visitors rather than spend the time and money to comply. It’s also possible part of the law won’t work as intended. In the past, when countries have passed laws allowing publishers to charge Google for its linking/snippets, Google has simply stopped linking altogether, driving down traffic to news sites. In Germany, publishers stopped insisting on a licensing fee from Google when the traffic drop was too precipitous to stomach.

Bill Rosenblatt of Copyright and Technology suggests that online platforms might choose to make the headache go away by paying a fee to collecting societies. He writes, “Collecting societies in much of Europe are pervasive and highly influential—more so than they are in America. … [C]ollecting societies are likely to propose blanket license schemes that are based on some coarse metric, such as revenue or data volume, and apportion the resulting royalties to rights holders using their current black-box methodologies. Online services will be happy to pay according to such simple schemes instead of building expensive, complex, and error-prone systems to track which content passed through their systems, when, and how. … It’s also possible that some online services that already do operate enforcement schemes will opt to shut them down and pay license fees instead, because it’s cheaper and easier that way. That would effectively shift money from enforcement technologies and staff to collecting societies, and eventually the pockets of copyright owners and creators.” In short, then, EU writers who receive money from collecting societies could see higher income—one of the intended effects of the legislation. Read more at Rosenblatt’s blog.

Bottom line: Michael Cader of Publishers Lunch perhaps summed it up best: “The law has pitted large, established content creators, whose interest is in recouping fees from their already widely shared content, against small up-and-comers more interested in distribution opportunities presented by social platforms than transactional profit.” Established, individual authors worried about and affected by piracy are likely to welcome the law, while creators who build their careers out of publishing remixed or transformative works (including possibly fan fiction) within the online ecosystem may find the move chilling. Read our next item for another perspective on the matter.