EU Copyright Law

November 19, 2018




On Tuesday, November 13th, European Generation hosted an on-campus debate focusing on the new European Copyright Directive. The Directive came about as an attempt to harmonize copyright law on the European level and bring it up to speed with current digital technology. While supporters have praised it for strengthening the position of authors and publishers against large digital content-sharing and aggregator platforms such as Facebook or Google News, critics fear that the Directive will result in online censorship and stifle innovation. We invited Piero Attanasio, who is the Responsible for European Affairs in the Italian Publishers Association, and Lorenzo Losa, the President of Wikimedia Italia, to share their perspectives on this polarizing piece of legislation. The panel was moderated by Laurent Manderieoux, Bocconi’s professor specializing in intellectual property law.


The discussion concentrated around the two most divisive sections of the proposed Directive, Article 11 and Article 13. Article 13 deals with the publishing of copyrighted content on online platforms, and it is the reason the Directive has been nicknamed the “meme ban”. The provision targets digital platforms such as Youtube or Facebook, whose business models rely on users uploading and sharing large amounts of content. This content is often shared in violation of copyright, and while the platforms are making profits from running ads on this content, the holders of the copyright (authors and publishers) often walk away with empty pockets. Currently, digital platforms are required to remove copyright-violating material upon request from the copyright holder, but they are not liable for its publication. Given the time and financial costs of such procedure, most independent authors and small publishers struggle to prevent their works from being shared illegally.


Article 13 attempts to level the playing field by shifting the responsibility to the platforms. According to this provision, online platforms would be required to take measures to ensure that users do not publish any content that is subject to copyright without the holder’s permission, and would be legally liable (could be sued) in case they fail to do so. The enforcement of this requirement is a major point of contention. The most realistic solution would have platforms implement some form of a “content filter”, an algorithm that would check all content uploaded by users against a database of copyrighted works and, in case of a match, prevent such uploads. Critics point out that such content recognition technology is often inaccurate and incapable of evaluating works in context. Particularly in the case of memes or other user-generated content which incorporate popular images, music, or clips that are often subject to copyright, content filters would not be able to recognize that these were created for the purpose of parody or satire, which is exempted from copyright laws in most member states. Critics claim that platforms will be encouraged to excessively censor user-generated content for the fear of being sued by publishers, which will hamper creativity and the freedom of speech on the web.


According to Piero Attanasio, large content-sharing platforms bear responsibility for the content that they use to generate revenues, and therefore, it is only right that they should also be legally liable. Since it is in their interest that users keep uploading as much content as possible, platforms have the incentive to keep the number of false positives (cases where legitimate content is incorrectly marked as infringement) at a minimum. The Directive on Copyright also provides for a speedy human-operated complaints and redress mechanism for users whose content was taken down unlawfully. Rather than stifling creativity, argued Mr. Attanasio, the Directive may foster innovation, as companies and startups will have to come up with business models that are socially responsible and do not violate intellectual property rights.


Lorenzo Losa’s contribution highlighted the impact that the Directive may have on smaller platforms and platforms that are not run for profit. Content-recognition technology is costly and implementing it may prove ruinous for such platforms, including Wikipedia, where content checks are currently done by human volunteers. While according to the latest draft of the Directive small enterprises as well as providers of non-commercial services, such as online encyclopedias, will be exempted from Article 13, Mr. Losa is convinced that this exception would not apply to Wikipedia because part of its content is actually licensed for commercial use. He worries that this Directive might force platforms like Wikipedia to shut down and turn the web into a playground for large tech companies able to cover the costs of complying with the legislation.


Article 11 has attracted a similar level of controversy as Article 13. In essence, Article 11 was written to allow newspapers and journalists to share in the profits of news aggregator platforms such as Google News and Bing News. At the moment, these platforms make a profit by linking to articles that were written by other news publishers such as BBC or CNN. If Article 11 passes, journalists and news publishers would have the right to ask these platforms to pay for using their work. Some critics of the legislation expressed concerns that the wording of Article 11 would prevent any users from sharing articles online, but the proposal of Directive passed by the Parliament creates an exemption specifically for individuals who share content for private or non-commercial use. Mr. Losa fears that this provision may also affect Wikipedia, whose ‘business model’ relies on referencing articles written by others. While Article 11 explicitly states that “mere hyperlinks which are accompanied by individual words” are not covered by the provision, Mr. Losa stressed it was not clear what the law meant by “individual words” and that this might obstruct the free creation of content on Wikipedia.


Another argument against Article 11 has been the fate of similar legislation passed in some member states. A 2014 German law gave publishers the right to demand payments from search engines and news aggregators if they wanted to display excerpts from their proprietary content. Rather than paying these licensing fees, Google responded by publishing only headlines of articles from copyrighted publications. Following this move, publishers saw a sharp decline in traffic to their websites from both Google search results and Google News, and eventually yielded, allowing Google to again display snippets from their articles for free. In Spain, a similar law resulted in Google News shutting down completely.


Mr. Attanasio also expressed discontent with the formulation of Article 11. He argued that technological rather than legal solutions were needed to improve the situation of the publishing industry, but that tech giants had continually obstructed making these changes possible. As an example, he spoke of the failure of search engines and large aggregator platforms to implement ACAP (Automated Content Access Protocol), a publisher-developed protocol for communicating with web crawlers. Currently, most websites use the robots.txt protocol to indicate which parts of the site can be scanned. Replacing robots.txt with ACAP would allow publishers to exercise greater control over their content, for example, by specifying what portion of it can be displayed by third parties and for what purposes. According to Mr. Attanasio, the decision of companies such as Google or Yahoo! not to adapt their crawlers to ACAP, despite originally being involved in its development, shows that they are more interested in consolidating their position in the publishing business than in building a fairer online marketplace for publications.


Professor Manderieoux closed the debate by commenting on the fact that European copyright legislation has become increasingly more conservative. He explained that while historically copyright was used to safeguard the rights of independent authors and small publishers, today’s copyright laws are written to benefit big players in the industry, and the new Directive on Copyright does not do much to rectify the situation. But he also recalled that the Directive is still in the form of a proposal, whose final form has to be approved by both the European Parliament and the Council of Ministers. The current version was adopted by the Parliament in September, so it is now the Council’s turn to vote on it. If the Ministers accepts this version without amendments, the Directive could enter in to force as soon as February 2019, but its journey would not end there. A directive is not a law in the conventional sense, rather it defines common goals for all member states but leaves it up to them to adopt appropriate legislation on the national level to achieve these goals. This gives national legislators lots of room to specify and to tweak the individual provisions. We will have to wait for at least another year to see what form the new EU copyright will take, but even then, courts are likely to have the final say as the Directive’s critics are not expected to go down without a fight.


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