As the Internet gravitates toward social media and viral content, claims of ownership over online content become more and more difficult to enforce. Songs and music videos are posted illegally on dozens of sites, and even news articles are often compiled by aggregators before finding their way to large segments of the public. Record labels that previously enjoyed sizable profits on the music they produced have now seen their revenues decline sharply over the past decade.
In response to these trends, the European Commission—the executive branch of the EU—has laid out a plan to standardize and modernize copyright laws across its member nations, making an effort to increase the options available to content creators. The plan would have to be ratified by the EU Parliament and by a council of ministers representing the 28 member states. In his 2016 State of the Union Address, Commission President Jean-Claude Juncker remarked, “I want journalists, publishers and authors to be paid fairly for their work, whether it is made in studios or living rooms, whether it is disseminated offline or online, whether it is published via a copying machine or commercially hyperlinked on the web.”
But as straightforward as this notion may seem, the proposal seeks to achieve this end through highly controversial means. It places a much higher burden on user-generated content platforms (like YouTube) and on news aggregators (like Google News). These two particular elements have led some Internet service providers to refer to the plan as regressive, suggesting that it discourages innovation and hurts consumers without truly benefitting producers. Because of the incentives it introduces, this proposal may increase the costs of entry for startups and innovators.
Under the EC’s plan, YouTube or any platform that provides public access to “large amounts” of copyright-protected works would be required to protect the copyrighted works by implementing “effective technologies.” To further confuse the matter, Article 15 of the EU’s existing copyright rules explicitly prohibits the imposition of a provider’s “general obligation to monitor” the information that it transmits or stores. The EC’s proposal seems to shift the responsibility for identifying infringing content from the individual rights-holders to the sites that host the content—essentially, a filtration system on the front end.
Statutory conflict aside, the costs of such a system could be prohibitive. The most advanced and effective of these technologies to date is YouTube’s Content ID system, which compares any audio or visual file uploaded to the site with a database containing millions of copyright-protected works (If you’ve ever searched for a song or video and only been able to find a modified, slowed-down version, those modifications were likely made to dupe the Content ID system). Once a match is made, the copyright holder can opt to monetize the infringing content or request that it be taken down. While the technology has been effective—YouTube claims to have paid out over $2 billion in Content ID claims since its launch in 2007—it has also cost YouTube around $60 million to maintain. The site has a team of employees that not only ensures that the system can adapt to users finding ways around the system, but also searches for offending videos and identifies them individually.
Also noteworthy is the proposal’s revival of the so-called “ancillary copyright,” which expands publishers’ copyrights to include short sections of articles appearing on news aggregators and search engines. Companies like Google would therefore need to obtain licenses to post even small snippets of articles in things like search results. Theoretically, this helps bring ad revenue back to the content’s original creators—Google would either pay for a license or cut out the snippet, forcing users to click through to the original site to read the article. In practice, however, it has not worked as intended. Spain and Germany both experimented with similar systems over the last three years; instead of paying for licenses, Google simply stopped using the snippets, and without them, Internet traffic suffered greatly as browsers stopped clicking on those articles altogether. Germany eventually granted Google a temporary free license, while in Spain, aggregator Google News pulled out of the country altogether. The European Commissioner for digital economy and society, Günther Oettinger, issued a response: “Google may be able to do without a single market like Spain, but no global company can afford to do without the market of the entire European Union. … And if they want to do business here, they have to play by our rules.”
The proposal, of course, has its fair share of positives. It adds new exceptions to the copyright laws for students, teachers and researchers, allowing them access to more data that could be useful for educational purposes. It also includes measures to increase the number of published works for blind and vision-impaired citizens, intending to “ensure that copyright does not constitute a barrier to the full participation in society of all citizens.” And its proposed change in licensing rules for video-on-demand (VOD) streaming will make it dramatically easier for broadcasters to stream their content across the EU, instead of having to contract with individual territories (though in many cases, the territorial system generates more revenue for broadcasters).
However, all in all, this is a proposal that appears to most benefit the companies that are already major players. Fledgling platforms that cannot afford a $60 million monitoring system and emerging publishers that rely on aggregators for readership could potentially bear much more risk than their more established counterparts. Many tech companies fall into these categories, which would make Silicon Valley a likely strong lobby against these kinds of policies in the United States; Europe has far fewer of these companies. But the leaders of Mozilla—creators of popular Internet browser Firefox—have not been shy about leading the charge against the new proposal, suggesting that it also lacks needed copyright law exceptions for things like memes. They created a website called Post Crimes, which turns your headshot into a “rebellious selfie” in front of a European landmark, and sends it as a postcard to a member of the EU Parliament. They also released a CSI: GIF video poking fun at the idea of enforcing these laws.
There is still a long way to go before these proposals are anywhere near being enacted, and the included guidelines could easily change in the coming months and years. But as long as the plan remains as it is, it is likely to remain a point of contention for ISPs across the world.
Vladimir Alexander is a J.D. candidate, 2018, at NYU School of Law.