29 Apr The EU New Copyright Bill: All You Need To Know

The EU’s new copyright bill: what, why and how?

If you haven’t been on the internet for a while, or happen to find yourself outside Europe, the controversial EU copyright bill, Article 13, will probably not mean much to you.

But even those of us outside European borders should  be aware of the new laws — should the union succeed in upholding the laws, there’s a good chance other countries may follow suit.

Why the new legislation?

Shortly before leaving his post as Digital Commissioner at the EU, Günther Oettinger submitted a proposal to radically overhaul the way in which content is accessed and shared throughout Europe. 

The proposal is an extension of the EU’s Digital Single Market Strategy which was adopted in May 2015. This strategy identified a need, “to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU”.

In short, the Union wanted a more congruent copyright treatment which would simultaneously uphold the rights of artists and content creators. Sounds simple enough. And yet it isn’t.

While the strategy had initially stipulated its aim of ‘harmonising’ and modernising exceptions and limitations to copyright, many critics feel that the union has focused wholly on limitations and that there is very little harmonisation involved. In fact, the original legislation which sought to give artists autonomy over their content and they way in which they structure their remuneration for ‘buyers’ who want to host their content has been nearly eliminated.

How is the legislation changing?

The new copyright directive will force content companies like Google, Mozilla, Alphabet, Facebook, Apple, Instagram, Twitter and so forth, to pay artists or creators whose works appear or are cited, played or displayed on their platforms. Furthermore, companies will have to proactively filter out copyrighted material uploaded by users as the companies (hosts) themselves will be held liable for content uploaded by their users.

The problem lies therein that, although the bill seems to be aimed at forcing the big companies like Google to pay up, critics stated that conversely, only big companies like these will have the capacity and budget to build and maintain the complex filters necessary for checking and cross-referencing content, updating old content and managing user delinquency.

In fact, companies in Europe have already been scrambling to comply with the General Data Protection Regulation (GDPR) introduced in 2018 which requires extensive stricter data protection policies and procedures as well as unequivocal data-breach notifications to be sent to clients in such an event. A breach of the GDPR could see companies part with up to €20 million or 4% of their global annual turnover.

Copyright bill opposition

Google itself has been very vocal in its opposition of the bill, stating that copyright is not always outright determined or explicitly stated and that it will significantly stifle content creation and sharing and lead to legitimate content being removed or ‘slowing down’ the internet by pushing content through reams of red tape. Mozilla has also been very vocal about their opposition of the bill.

It seems no one is arguing the fact that artists need to be recompensed for their work, but internet giants state that big companies are already paying legitimate fees for the use of copyrighted materials — it’s the individual user who tends to upload content which is copyrighted, and these people neither understand copyright laws, nor do they have the finances to pay for all content uploaded to platforms.

Proponents of the bill are adamant that the legislation is necessary to prevent users from undercutting publishers through social media cross-linking and news aggregators, thereby forcing users to access content from the publishers themselves. But many objecters believe that these publishers completely disregard the fluid, natural and intuitive interaction and evolution of the internet and social media. Users will not take kindly to being forced to act a certain way or do a certain thing, especially if these extra efforts will lead to delays or intricate authentication.

Wikipedia has also protested the bill by sporadically switching off its pages in Europe. It’s important to note that Wikipedia has always expected their users to provide proper citations for content, but that the platform is fluid and a work in constant progress, which means no single page will ever be completely edited. As a free platform created by the people for the people, the filters suggested by the EU will go against the entire premise of the online encyclopaedia. Luckily the bill has relaxed some from its original form which now exempt platforms like Wikipedia, but the Wikimedia Foundation has stated that they still oppose it in principle even if they’re exempt.

While most individuals outside Europe have not paid the bill much mind, it’s important to note that any and all companies who share content across European borders (worldwide) may be penalised should their content be shared in Europe. It’s a complex situation.

Social media and content-sharing platforms will have to:

• build separate content streams for two different readerships — EU and non-EU users
• build complex filters to remove certain content for users in the EU
• risk losing clientele
• have to find new ways for people within and outside Europe to communicate together in online threads or on online platforms
• use sponsorships and advertising due to a drop in users and content
• increase their budget for copyright and/or legal fees

The problem with budgeting for additional copyright fees is that the companies themselves will not feel responsible for the content that their users upload and would not cover the costs on their users’ behalf. What one may expect then, is a new internet full of ‘holes’ where content will be removed once identified to be an infringement (or possibly while being reviewed).

Aimed at helping smaller artists?

According to the Financial Times, the new copyright laws are aimed mainly at assisting smaller artists and content creators in getting paid. For while platforms like YouTube give major artists a Content ID which enforces their copyrights, this is not done for smaller, independent artists. With the new laws, smaller artists can tell these platforms to remove unauthorised content.

The thing is, YouTube already allows users to query copyright and state very clearly that they don’t accept copyright infringement, so this really is nothing new. Platforms would need to drastically enhance their algorithms to filter and remove such content automatically or ‘intuitively’, if the EU is to see a difference. And if the only aim is for artists to demand that content be removed, then this content filtering does not benefit the artists in a monetary sense.

Professor of intellectual property law at Brunel University, Hayleigh Bosher, stated that although she believes platforms like YouTube and Facebook are detrimental to record labels and artists, the copyright bill is conversely detrimental to these platforms, and that the bill is the wrong approach to tackling the problem.

People like Professor Bosher seem to believe that lawmakers need to make a greater effort in reinforcing the concepts of copy and intellectual property rights with the public and individuals, as this is the source of the trouble.

Furthermore, internet activists have voiced their concern that the advanced filters which will need to be implemented will amount to tech surveillance and impede on their rights to privacy and freedom of speech.

The exemptions

As mentioned before, there are certain exemptions which are determined by:

• The nature of the platform where the content is posted
• The nature of the content which is posted

The nature of the platform

With regards to the nature of the platform, there are a few platforms which may get away with more lenient copyright treatment.

Smaller companies will have more lax rules. Under the compromise reached between head-bumpers France and Germany, these companies will have to comply with three criteria for relaxed rules:

• Have an annual revenue below €10 million per year
• Have fewer than 5 million viewers per month
• Be in existence for less than three years.

Furthermore, platforms which curate content for non-commercial use such as Wikipedia and GitHub will get a free pass, and private cloud storage will be exempt. Bear in mind that private cloud storage which uses public links may still be scrutinised.

This can be problematic for sites or apps which host content on their cloud storage.

The nature of the content which is posted

One aspect of the copyright bill which had the public up in arms was its implications for satire and memes. Internet users have been adamant that such content is not aimed at infringing on an artist’s rights, but rather used for circulating relevant humour or colloquialisms which applicable to a certain community at a certain time.

The EU listened and consequently exempted content aimed at, “quotation, criticism, review, caricature, parody and pastiche”, which includes memes and mashups.

The exemptions, however, do not apply to link-tax mentioned in Article 11. The link tax is applicable to all platforms, whether big, small, corporate or individual within the EU or disseminating content through the EU to pay link-tax to the original artist or content producer for any content exceeding single words or phrases.

A headache for web curators and developers

In the last decade or so, developers, writers and content creators for websites and apps have become increasingly adept at improving search engine optimisation (SEO), meta-tagging, cross-linking, hotlinking and using affiliate marketing on their sites to monetise their sites.

With changes to the type of content Google or other search engines may be able to show on search engine results pages (SERPs) and on their News pages, these search engines will have to drastically alter algorithms and rules which content builders currently use to construct websites.

A few possible concerns for web and app developers

Hotlinking:

Hotlinking is the process of showing content on one site which is hosted on a third-party site. It is already considered bad practice and prohibited by many websites, and could probably be completely banned across the board under the new legislation.

Reworking content:

Sites may have to completely rework content to accommodate the new legislation which will place tremendous pressure on content curators and developers. This is especially taxing where bloggers or news desks cross-link multiple articles throughout their site or link to external sources.

Sites will also have to rework content to accommodate new EU-specific SERPs if they want to remain relevant.

The reworking, if done incorrectly, could see to a significant increase in orphan pages and broken links if content is to be updated retrospectively. This will also affect web analytics data — something many sites rely on, or require as part of their service level agreements with clients. Flawed analytical data may present the sites in a bad light and see to a loss of commission or contracts.

SEO and meta-descriptions:

Sites may have to provide different SEO, alt-tagging and meta-tagging information based on the users’ location which will will drastically increase the workload involved in site optimisation.

Affiliate marketing:

Affiliate marketing/selling third-party content on your site may become problematic where the content includes extracts or duplicate content/marketing terms/art/teasers from the product which is being sold. Consider a platform like Amazon, for instance, which often includes extensive extracts from books and magazines, or some online music stores which give users a ‘taste’ of what they’re buying. How will this content be regulated? Considering that the EU wants to shorten the already concise search engine results, will they also limit how much of a sneak peek users can see for other content?

Terms and conditions:

Sites will have to update their page disclaimers and terms of use for sites and apps. Will legal practitioners across the world be informed enough to advise on the correct terminology?

RSS:

RSS refers to Rich Site Summary or Really Simple Syndication (used interchangeably. Many sites incorporate RSS – which shows selected extracts of content from other platforms. Sites can also broadcast their RSS feeds to sites or news aggregators based on the users or developers’ selected RSS criteria. Copyright implications of RSS have already been hotly debated for a while, but with the new legislation it seems that debate will be settled once and for all as it’s unlikely that the EU will allow this type of aggregation without imposing link-tax. 

What’s concerning is the amount of content which ‘passes through’ an aggregator — should sites be required to provide link tax each time a new article or breaking news hits the interwebs, it will be a very expensive exercise.

Licensing:

Sites and content hosting platforms will need to acquire licensing for any and all possible content uploaded to their sites without exception and the licenses (as required by law) will need to be acquired before the fact. This is mind-boggling since platforms cannot possible intuit what users are likely to post in future, nor is there a ‘one-size-fits-EU’ license which will cover any eventuality.

The geo-blocking conundrum

Another piece of legislation which preceded Article 13 (adopted on 28 February 2018) is the EU’s Geo-Blocking Ban which is aimed at eradicating discrimination against buyers of a particular site based on their nationality, the country of the establishment, residence or location, as the union believes geo-blocking to be unjustified and unfair.

Geo-blocking refers to measures which online platforms use to treat users from different regions of Europe in different ways. It is applied by tracking a user’s:

• Internet Protocol (IP) address
• Address
• Payment information

Of course, the geo-blocking policy only counts for member states of the EU and it does allow for geo-blocking based on licensing restrictions, but the question remains how the EU will feel about widespread geo-blocking from sites around the globe given that they already view the action as ‘unfair’ within the union itself.

If the simplest solution to curtailing the EU’s wrath would be to simply exclude the EU, then it’s quite possible that this will also be the most favourable option for many sites.

Another problem with location is how exactly the EU plans to address the curation and compensation for artists outside the EU whose content is being used within the EU? Will the bill be applicable in part to those content creators as well?

If so, how will European companies feel about having to pay for content by users who don’t need to follow any European laws themselves.

If not, what’s to keep these content creators from withholding content from Europe altogether in protest?

Furthermore, how will family, friends and staff on opposite sides of the EU borders deal with such disparity? Will the artificial barriers of copyright censorship create even greater borders between people and cultures?

The small silver lining…

Although the copyright bill is quite devastating in a sense, the small silver lining is that it could drastically boost the livelihoods of existing artists and fuel the expansion of the creative industries.

Content producers within the EU may jump at the opportunity to publish and sell their work and may seek interesting ways of keeping content fresh and original which may infuse some energy into the creative market.

The bill will certainly see some chiseling and fine-tuning before it is implemented. For now we wait with bated breath to see how this will change the face of Europe and the world.