Even as book publishers praise the compromises in the European Union’s new copyright directive, free speech and internet-integrity lobbyists warn of potential disaster
As we promised in our last edition, we have a summary of the EU’s decision on the Copyright Directive, which on March 26 was given a thumbs-up by the European Parliament. The next move is an EU Council vote set for April 15. While it’s expected that the council vote will echo the plenary in approving the directive, you could be forgiven if you start to feel that the debate on this is endless. Even after the Council vote, nothing will change quickly: the EU’s 28 member states have two years to “transpose” the new directive into their own laws.
The major international associations that represent the interests of trade book publishing have lauded the outcome as a victory for book publishers’ interests in the EU. The directive affirms publishers’ rights to receive a portion of the royalties collected by agencies (CMOs or copyright management organizations) for copyright fees. Furthermore, the attorney Jessica Sänger, who is the legal counsel and international affairs director for the German publishers’ and booksellers’ association, says the directive “clarifies what is permissible for teachers and educational institutions when it comes to uses for illustration for teaching in cross-border contexts. Important questions around uses by libraries of works which have fallen out of commerce have been addressed.”
If we put aside the European book industry, however, there are vociferous objections from the tech and media communities. The next stage for the Copyright Directive, writes the Electronic Frontier Foundation’s (EFF) Danny O’Brien, is a protracted battle with various digital rights groups who will challenge the directive.
Author and activist Cory Doctorow, for example, wrote an article about the potential damaging effects of Article 13 in the copyright directive. Article 13 says that major tech platforms are required to license any use of copyrighted content on their systems (not just written work, but also video, music, and other creative content). Revenue produced for rights holders might then be collected and distributed, similar to how copyright revenues are now gathered by CMOs in Europe.
Doctorow and others who condemn the directive typically do so on the following grounds:
- Legitimate use of content may be blocked. Because large tech platforms hosting user content will become responsible for copyright infringement, they’ll have to institute strong filters—and those filters may block legitimate content and fair use content. “While EU copyright sets out financial damages for people whose copyrights are infringed,” Doctorow writes, “you aren’t entitled to anything if your legitimate posts are censored. So if a company like Facebook, which sees billions of posts a day, accidentally blocks 1 percent of those posts, that would mean that it would have to screen and rule on millions of users’ appeals every single day.”
- Large companies may have an advantage. The big tech platforms have the ability to institute filters and deal with the complexities of the new Copyright Directive and the 28 different ways it may be implemented across Europe. They also have the deep pockets to fight legal battles as needed. But new businesses and smaller players are unlikely to have the same resources and will be at a market disadvantage—further entrenching the biggest platforms.
- Smaller rights holders may be ignored. Article 13 may be more helpful to major rights holders, the ones most likely to receive royalties from collective management organizations. Stan Adams writes at Center for Democracy & Technology that the legislation may amount to “a broad value judgement about which artists deserve additional compensation. … [It] ignores the likelihood that many independent artists will be worse off, either because it will simply be easier to block content from unknown rights holders than to establish a compliant licensing mechanism or because of the complexities and failures of automated filtering systems (the mandatory backup option for unlicensed works).”
In the wake of last year’s privacy-protecting GDPR legislation from the EU, some US sites decided the best solution would be to simply block EU visitors rather than comply. Something similar may happen if Article 13 presents too big of a compliance headache.
Bottom line: In short, what looks like an effort to respect the content of rights holders could become a form of censorship if the right tools aren’t created and applied to the problem. An optimist might conclude that this reform has the right intent: to ensure creators and rights holders are fairly compensated for their work. Now systems must be put in place to ensure that happens in the most equitable and efficient way possible without compromising freedom of speech. As mentioned, there’s considerable time for implementation—and likely a lot of upcoming court proceedings, too. While the book industry doesn’t seem to be immediately affected, expect internet-freedom advocates to remain loudly concerned that a slippery slope has opened up in the name of copyright protection.
Jane Friedman has spent her entire career working in the publishing industry, with a focus on business reporting and author education. Established in 2015, her newsletter The Bottom Line provides nuanced market intelligence to thousands of authors and industry professionals; in 2023, she was named Publishing Commentator of the Year by Digital Book World.
Jane’s expertise regularly features in major media outlets such as The New York Times, The Atlantic, NPR, The Today Show, Wired, The Guardian, Fox News, and BBC. Her book, The Business of Being a Writer, Second Edition (The University of Chicago Press), is used as a classroom text by many writing and publishing degree programs. She reaches thousands through speaking engagements and workshops at diverse venues worldwide, including NYU’s Advanced Publishing Institute, Frankfurt Book Fair, and numerous MFA programs.
