Following the entry into force of the law of protection of personal data with the greatest international repercussion – the General Data Protection Regulation – the European Parliament approved a directive with a great financial impact on the revenues of large online content providers such as Facebook, Youtube and Google. The Directive on Copyright in the Digital Single Market has raised a number of controversies because it implicates in the possible “end of Youtube” and even of the internet as we know it, as well as being considered an “anti-meme law”, mainly because of two of its articles. In this text, we intend to briefly analyze these devices, as well as to clarify questions about the European legislative process and the repercussions of normative approval in the Brazilian context.
The European legislative process
The scope of the directive in question does not affect only one specific country, since it is emanated from the European Union (EU), an economic block constituted by European countries. For this reason, the legal order and legislative process that involves the norm is quite different from that envisaged in Brazilian Law.
Treaties constitute the legal basis of EU Law, constituting the so-called primary right. Its principles and objectives derive from regulations, directives, recommendations and opinions. “A directive is a legislative act that sets a general objective that all EU countries must achieve,” according to the official EU website, since it carries the European consensus on a particular subject. To this end, each country elaborates its own legislation in order to transpose the directive into national Law.
The adoption of a directive runs through the rite of the ordinary legislative procedure, in which the European Parliament legislates jointly on a parity with the Council and, for decision making, a majority of 55% is required for the quorum of voting in the majority of cases, but 72% in some.
Conduct of Directive on the Digital Single Market
The European Commission proposed the directive in September 2016. In July 2018, the European Parliament rejected a draft version under Articles 11 and 13, however, after reformulations and several amendments to the proposed text, in September 2018 the European Parliament adopted the legislative text in Strasbourg by a score of 438 against 226 with 39 abstentions. Approval of the directive is still necessary at the European Commission, which was scheduled for January 2019.
However, on Jan. 18, the final discussions were canceled because they met with resistance from 11 European Union countries. According to Julia Reda – of the Pirate Party of Germany -, Italy, Poland, Sweden, Croatia, Luxembourg and Portugal joined Germany, Belgium, Holland, Finland and Slovenia against the norm. So the parliamentary debates are now paralyzed.
The Directive aims to regulate the use and sharing of content protected by copyright in a digital context and as a justification for its elaboration, there is an interest in stimulating creativity, innovation and integration in the internal market, in order to avoid fragmentation in the sector and to bring the common European cultural heritage to the foreground, in accordance with Recital 2 of the legal text and in accordance with Article 167 (4) of the Treaty on the Functioning of the European Union.
At various points in the legal text, the intention is to emphasize the proper functioning of the internal market. However, the cross-border nature of the internet must be considered. The regulations and decisions that directly affect the economic relations developed in the online environment and monetization of the production of content, although directed to the EU, impacts the computer network as a whole. For this reason, several youtubers and personalities from various locations around the globe who develop their work based on online content have manifested themselves in support or rejection of the directive, evidencing the holistic perception of the phenomenon.
Main criticisms of the Directive
The EU directive has been a topic of extensive discussion since its introduction, and has been gaining more emphasis in recent months as it approaches the final stages of its legislative process. In the text, there are two devices that stood out among the others, and motivated the greatest volume of discussion and criticism: Articles 11 and 13.
Article 11 concerns the protection of press publications with regard to digital uses. The main goal of the device was to limit the spread of news by outsourced service providers, to the example of Google News, on the grounds that they were profiting from the original carrier vehicles of the news. The claim is that these services replace for users the need to effectively enter sites for aggregate news, which harms the collection of copyrights by the original authors. Because of this, Article 11 determines that it would be necessary to pay fees on these copyright contents to enable their sharing.
The device, however, generated controversy at first because of the way its text was drawn up – in a worryingly generalist way, that allowed for very broad interpretation. This led to the possible interpretation that ordinary, non-profit users would also be prevented from sharing links to news and other content online – or in this case charged and potentially punished if they did not make the payment. This could pose a serious problem with regard to the dissemination of information for educational and non-profit purposes in general, even to combat the uncontrolled spread of fake news, for example.
Article 11, however, was altered by Amendments 151 to 155 of the text of the Directive, which made its provisions considerably clearer. It has become clear, for example, that the device applies only in cases of digital for profit purposes, not affecting ordinary users of social networks who wish to disseminate content in general, such as news stories and the like. In addition, an exception has been made to the aggregation of news by service providers, if there is only the availability of news links accompanied by only isolated words – that is, without headlines and extensive explanations of the content, which may in a way replace the need of users accessing the content on their originating websites.
Even after the amendment, however, it was argued that such measures would actually be detrimental to the communication vehicles that hold the copyrights over the content covered by Article 11 . The reason behind this is that such platforms benefit from the exposure caused by the services compiling the material produced by them, resulting in a greater amount of views and, consequently, greater revenue through the advertisements displayed on the sites. Thus, it can not be certain whether the provisions of article 11 are in fact beneficial to the authors of the content that the device proposes to protect.
Article 13, in turn, was the focus of most of the criticisms that were directed at the Directive. The device deals with the safeguarding of copyright in content of any nature – videos, music, images, texts, etc. – made available on online platforms by its users. In other words, the article refers to copyright protection on platforms that allow users to publish content of any kindfor the mass public.
The device, in short, makes these platforms, such as YouTube, Reddit and even social networks like Facebook, Twitter etc., responsible for the undue sharing of authorial content by its users from the moment of the posting. This represented an innovation in European law, as there was previously an exception to the liability of these platforms in the case of copyright infringement by their users, arguing that the platforms would be mere drivers of the shared material.
Like Article 11, the fairly generalist initial wording of Article 13 has also received heavy criticism around the world by users of such platforms, scholars, digital rights activists and the platforms themselves. Amendments 156 to 161 of the text of the directive provided for amendments to the original text of Article 13 but, unlike the amendments to Article 11, only increased the severity of the provisions of the provision. These changes also did not solve the problem of the excessive generality of the device, corroborating even more severe critiques by the community.
The accountability of the platforms through which the content is shared is accompanied by the obligation for these platforms to perform a detailed filtering of all material added to their databases to see if all copyright licenses have been properly paid through agreements between users and the holders of those rights. This corroborates some problems:
The first one is the viability of this filtration. This technique – already implemented by YouTube through Content ID, for example – is extremely costly, and would have to be refined even further to meet the requirements of the EU directive. As a consequence, it is impossible to implement such an advanced tool by smaller providers, and even large companies will face a huge challenge to meet these expectations. Failure to comply with the legal provisions of the new directive will therefore lead to the closure of several of these platforms in the European Union.
In addition, there is a danger that the provisions of Article 13 will accompany very negative unnintended consequences. This is because the severity of penalties for content sharing platforms results in the need for even more meticulous filtering of content shared by users. The need for this process to be extremely fast, and therefore automated, means that such a filtering will be unable to distinguish irregular uploads from those that qualify as exceptions to the copyright obligation – such as parody, criticism, the other forms of creative production that fall within the concept of free “fair use” of third-party copyrighted works.
The result of this, as you can imagine, will be the blocking of any attempts to send content of this nature to the platforms, derived from their fear of being punished for some copyright infringement. The same can even apply to the circulation of memes and “reaction GIFs” in websites and social networks, since they are often created with frames of series, movies and the like.
This creates the opposite effect of what was sought with the legal mechanism – which was to protect content creators from such platforms from misusing their work. Rather, what is observed is the possibility of censorship of the material produced by them, since Article 13 allows the brief, partial and regular reproduction of authorial content to result in the blocking of that work.
Danger extends beyond the European Union
These are some of the reasons why the EU directive poses a real threat to the internet as we know it – not only within the European Union, but around the globe. This is because, as we mentioned earlier, the internet has a cross-border character and, consequently, presents challenges for harmonization of the legal systems in force in each country.
Europe, on the other hand, is considered one of the main points of interest in terms of internet implementation and legislative production on the subject. Not surprisingly, the European General Data Protection Regulation has been universally applauded and has served as the basis for the creation of several other legislation on the digital environment, such as the General Law on Protection of Personal Data in Brazil.
It is therefore perceived that the adoption of the Directive by the EU may influence other countries to adopt similar measures in their jurisdictions, which would amplify the consequences described earlier in this text. Motivated by these concerns, critics of the Directive mobilized through the #SaveYourInternet campaign. The movement is based on the argument that, in addition to what has been stated above, the only ones benefited by the implementation of Article 13 are the large companies that own the copyright for much of the audiovisual content circulating on the internet.
With the directive moving forward towards the end of its legislative course, we fear for its consequences. There is still time for European lawmakers to become aware of the damage that this new directive can generate, despite all the good intentions, but each day there are less chances of something being done to remedy this situation.
If you are interested in the subject and want to know more about copyright regulation on the internet, read the publications available here that focus on the subject.
Text written by Paloma Rocillo and Victor Vieira.