Imagine it’s the summer of 2021, and an artist based in Berlin is uploading an image she created to express her support for the candidate vying to be Germany’s next chancellor—whomever she or he turns out to be—in the style of ’s
iconic 2008 Barack Obama Hope
campaign poster to Facebook. Before the image hits the news feed, a recently introduced Facebook upload filter checks the artist’s image against a vast database of copyrighted materials, turning up Fairey’s poster and countless other images in a similar style. The artist’s upload is denied; she can appeal the filter’s decision, but the process could take weeks, by which time the election will have passed and the image may be irrelevant. She gives up on sharing her artwork.
Changes to the European Union’s Copyright Directive
may bring about scenarios similar to the one described above if the amendments approved
by the European Parliament in September are adopted without significant alterations. The directive is intended to overhaul the EU’s copyright legislation, which has not changed significantly since it came into effect in 2001. It would require tech giants like Facebook and Google to share revenue with news organizations whose articles are currently being shared or condensed into snippets by aggregators like Google News without compensation. It would also hold social media and content-sharing platforms responsible anytime artists’ copyright-protected works are uploaded without their permission.
“The idea is to provide protection for rights-holders,” said Kenneth Mullen, a partner at Withersworldwide who specializes in technology and intellectual property. He suggested that the EU intends for the directive to close a legislative gap that has grown wider as the internet has evolved, while copyright laws remained static over the past 17 years. But he said the directive could have unforeseen repercussions, making it difficult or even impossible for artists to post their work on social media and other content-sharing platforms.
“It could harm artists who sometimes collaborate or use things that they see online to make their own creations,” he said.
The directive, if adopted by the European Parliament, could, in fact, have repercussions far beyond Europe. Like the General Data Protection Regulation adopted in 2016 and implemented earlier this year to protect the data and privacy of internet users in Europe and beyond
, the new Copyright Directive may affect any platforms hosting content uploaded or accessed by users with Internet Protocol (IP) addresses in Europe.
“It’s often very difficult to track down who may have posted an image in China or somewhere else,” Mullen said. “So by putting the platforms in the firing line, the directive would make it easier for rights holders to catch somebody who might have a connection to Europe and take action against them.”
The Copyright Directive’s two most contested provisions, articles 11 and 13, shift the burden of responsibility for copyrighted materials posted online from rights holders to content providers. Article 11, dubbed the “link tax,” would let publishers demand licensing fees from social media platforms and aggregators like Google News. Of particular concern for artists is article 13, which pertains to platforms “storing and giving access to large amounts of works and other subject-matter uploaded by their users,” such as Facebook, Instagram, and YouTube. It would make the companies operating those platforms liable for copyrighted materials uploaded by users without the copyright owner’s permission, most likely necessitating the widespread adoption of upload filters like the one described above.
However, existing versions of such filters on platforms like YouTube and Facebook are error-prone and vulnerable to copyright trolls
. For instance, in 2012, YouTube Content ID
, the Google-owned video site’s content filter, took down
a user’s video that showed him picking salad ingredients because it included the sound of birds chirping; the automated filter concluded that the video infringed on a copyrighted song that includes the sound of birds chirping. Last year, YouTube once again came under fire
when its family-friendly “Restricted Mode” filter mistakenly filtered out users’ relatively banal videos about same-sex relationships.
“There will potentially be more content filtering by platforms,” Mullen said. “How they’re going to be able to track down content and then pay out its copyright, I’m not quite sure, but these decisions are put into law, and then it’s up to the industry to figure out how they’re going to implement them in practice.”
Given the problems encountered by existing content filters, critics of article 13 of the Copyright Directive fear that forcing content-sharing platforms to implement content filters could reduce the freeflow of original creations parodying, appropriating, remixing, or satirizing existing images and videos—hallmarks of countless artists’ practices and of the internet since its inception—to a trickle. If administering filters and licensing agreements becomes too complex, cumbersome, or costly, content-sharing sites could be forced to make even more drastic changes.
“The amendments talk about licensing agreements for online content sharing between service providers and rights holders,” said Mullen. “The risk is that, as an unintended consequence, if this becomes too difficult to administer, it just may be that online service providers won’t even upload material if they find that the whole process is going to be too difficult.”
That’s exactly what opponents of the Copyright Directive fear. In a letter addressed to creators on YouTube, the video platform’s CEO, Susan Wojcicki, warned
that article 13 “poses a threat to both your livelihood and your ability to share your voice with the world,” and could force sites like YouTube to only host “content from a small number of large companies.”
In an open letter
addressed to the president of the European Parliament, Antonio Tajani, more than 70 internet pioneers and open access activists warned of even more sinister implications of article 13. They cautioned that it “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 text of the Copyright Directive is currently being reviewed and tweaked, and will not come up for a vote in the European Parliament until January 2019 at the earliest. Once approved, in whatever final form it takes, the EU’s member states will have two years to implement it. But the exact terms of the amendments are far from finalized.
“The online platforms aren’t going to let this sail through without having one more attempt at trying to reign in rights holders in article 13 in particular,” Mullen said. “There will still be a bit of changing to be done here.”