Paying Rightsholders Vs Censoring The Internet: Europe Divided Over New Copyright Legislation

Two key changes were voted in by members of the EU Parliament on Wednesday, Sept. 12, in Strasbourg, France, with 438 voting in favour, 226 against, and 39 staying absent. One forces online platforms such as YouTube and Facebook to police uploaded content for copyright infringement, the other introduces a tax on links to published content.

The recorded music sector has long been complaining that the EU’s current copyright legislation let internet giants like YouTube or Facebook off the hook by not making them responsible for the content uploaded by its users. This, the sector argues,  has led to a vast amount of unlicensed musical content currently uploaded to the world’s biggest platforms. The fact that it’s unlicensed means rightsholders don’t get remunerated.

The recorded music sector has been calling out YouTube many times over the past years, urging the company to sign licensing deals with the industry’s rightsholders that would match the ones of the world’s major streaming services.

The new EU legislation doesn’t affect or encourage the signing of licensing agreements. The first part of it, Article 13, places the burden of policing content for copyright infringement on the websites that host the content.

This means YouTube et al. will have to scan all uploaded content and ban it in case of copyright infringement.

The second change to the law, Article 11, introduces a link tax, that forces Facebook, Twitter, search engines, and other sites to pay a licensing fee when linking to news publishers’ content.

Bodies representing rights holders across Europe have applauded the EU Parliament’s decision, which still needs to be approved by the EU Commission and the councils of the EU’s 28 member states. The approval is considered to be a mere formality at this stage, though, and the new legislation is expected to become effective in January, ahead of the next European elections in May 2019.

Songwriter Eddie Schwartz, president of the International Council for Music Creators (CIAM), said: “This is a seminal moment in the future of music creators and indeed all creative people in the EU and around the world. The EU Parliament has clearly shown the way towards not only a new dawn for reinvigorated cultural industries and individual creators, but also the equitable distribution of wealth in the flourishing digital economy.

“We trust this historic vote will be endorsed in January 2019.  Future generations will see this as an historic moment, and celebrate all those who made it possible, as does CIAM today.”

Paul Pacifico, CEO of The Association on Independent Music (AIM), said: “It is a great day for culture and music in Europe as the Copyright Directive is adopted by the European Parliament. I would like to thank the MEPs from all parties for their energetic and highly engaged approach to this very sensitive and important legislation that stands to benefit the next generation of music artists and creators online who generate the content we all enjoy.”

Frances Moore, chief executive of the International Federation of the Phonographic Industry (IFPI), joined others in the creative community in thanking the European Parliament for its work on this proposal.

“We now look forward to working with the three institutions in the forthcoming trilogue to ensure the Value Gap is effectively closed,” she said.

Robert Ashcroft, chief executive of British collecting society PRS for Music, said: “The European Parliament today took a bold step forward to ensure a functioning and sustainable digital single market for creative content. PRS for Music has fought from the beginning for digital services to pay all creators fairly for the content they use. Today’s vote was a ringing endorsement of our work and that of our colleagues in the industry over the last five years.”

The new law has been years in the making, and was amended several times before receiving the Sept. 12 majority vote in favor. Critics have been vocal from the start. One of their main points of contention was the fact that the link tax was likely to only benefit the large publishing groups, who were also the ones putting considerable lobbying efforts behind the law reform.

They also pointed out that the larger companies would only be able to police the uploaded content, if they used software filters, which are known to make mistakes when flagging content, sometimes blocking material for no legitimate reason.

After all, exemptions for the use of copyrighted material exist, for instance, if it’s used for educational purposes or satire. However, the software wouldn’t be able to discern between these different types of usage.

The cost of policing could also put small and medium-sized companies under financial pressure, and lead others to not launching a business in Europe in the first place.

A group of the Internet’s original architects, including World Wide Web-inventor Tim Berners-Lee, Ethan Zuckerman of Harvard University’s  Berkman Klein Center for Internet & Society, Katherine Maher, executive director of the Wikimedia Foundation and many more, co-signed an open letter to the EU Parliament back in June, stating:

“By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for

sharing and innovation, into a tool for the automated surveillance and control of its users.”

“The impact of Article 13 would also fall heavily on ordinary users of Internet platforms—not only those who upload music or video (frequently in reliance upon copyright limitations and exceptions, that Article 13 ignores), but even those who contribute photos, text, or computer code to open collaboration platforms such as Wikipedia and GitHub,” the letter continues.

The Max Planck Institute for Innovation and Competition in Munich, Germany, pointed out that “obliging certain platforms to apply technology that identifies and filters all the data of each of its users before the upload on the publicly available services” was contrary to the European Charter of Fundamental Rights.

The new law wouldn’t just put an end to user-generated content using bits of copyrighted music or remixes, but also memes and GIFs, which have become a popular way of sharing information online.

There’s a fear that, rather than protecting rights holders, the new law will merely give rise to armies of lawyers, who will need to write the many cease-and-desist orders that will most likely become necessary, seeing that not every company out there will catch every little piece of copyrighted material.

One of the main points of critique remains the fact that the law is vague in its scope. Will all links and teaser texts posted in the future have to be checked for copyright infringement? And will there be exemptions for small businesses?

“The resulting business uncertainty will drive online platforms out of Europe and impede them from providing services to European consumers,” the alliance of Internet visionaries wrote.

“We support the consideration of measures that would improve the ability for creators to receive fair remuneration for the use of their works online. But we cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks. For the sake of the Internet’s future, we urge you to vote for the deletion of this proposal.”