What not to post online: how Europe law proposes to protect copyright

Legislation approved by European Parliament puts more responsibility on tech platforms. What are its provisions, and views for and against it?

Written by Karishma Mehrotra | New Delhi | Updated: September 17, 2018 12:17:42 am
Members of the European Parliament during voting on copyright reforms in Strasbourg (France) last week. (Reuters)

Last Wednesday, the European Parliament approved a new copyright legislation that increases the responsibilities of technology platforms and the rights of content producers. The law needs to go through further steps before it is implemented, but the news signals a government pushback against technology companies and their continued effort to remain passive conduits of information. A look at what the legislation proposes to do:

The legislation

It is commonly known as the EU Copyright Directive, or the Directive on Copyright in the Digital Single Market. It proposes to make it necessary for online content providers to get authorisation from the content creators, without which the provider will have to prevent availability of that content. This would give publishers extended rights over online use of their content. Lawmakers have championed the need to balance profits for the creators and profits for platforms that make the content publicly available. These platforms are online service providers that aim to make profits from organising, promoting, or categorising copyright-protected content uploaded by users. These include Google, Facebook, Wikipedia, Reddit and YouTube.

READ | Google, Facebook dealt blow by EU lawmakers on copyright

Where it stands

A parliamentary committee introduced the Directive in June to adapt EU copyright rules from 2001 to the digital environment. Last Wednesday, it finalised its amendments and forwarded them to Parliament. Before it becomes law, the Directive will go through “trilogue negotiations” among the European Commission, the Council of the European Union, and the European Parliament until early 2019. Views from all stakeholders will be directed to Members of the European Parliament. After that, the Directive will need to go through the 27 member states.

Major provisions

Two articles are at the crux of the debate.

Article 11 allows publishers to gain copyright protection on their content that is being used by online content providers. The article still allows for the “legitimate private and non-commercial use of press publications by individual users” and “mere hyperlinks which are accompanied by individual words”.

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Article 13 has a more controversial stipulation, making online content platforms liable to take “effective and proportionate measures” on copyright violations. This shifts the burden from the copyright holder to the platforms, mandating them to remove violations “expeditiously” and demonstrate “best efforts… to prevent future availability.”

Another key provision is one that exempts scientific researchers using text and data mining technologies, and educational purposes. The law also gives small enterprises more leeway in removal of unauthorised content.

The debate

Many publishers, music labels and the like argue that giants such as Facebook and Google make a lot of money from content that is made by others whose share is shrinking.

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On the other hand, technology platforms, academics, industry pioneers, and other rights organisations caution against threats to freedom of expression and to “open online sharing”. Especially frightening, they say, is the “upload filter” of Article 13, which would encourage companies to deploy algorithms that play it safe and over-restrict content.

Campaigners have also highlighted that the resulting “censorship machines” will not be able to discern parodies, satire, and memes. “This would effectively turn the internet into a place where everything uploaded to the web must be cleared by lawyers before it can find an audience,” according to Google’s blog. Wikipedia even shut down some of its pages in protest.

Previous efforts

In 2013, Germany introduced a law that allowed publishers to stop search engines from using their news content beyond the headlines. The law was later watered down to allow for snippets of the content.

In 2014, Spain passed a similar law giving publishers the right to levy licensing fees on online content aggregators. In response, Google News closed operations in Spain and removed Spanish media outlets from the platform. Both these laws have been dubbed the “Google tax”.

YouTube’s “Content ID” system deploys filtering against copyright violations. However, Google marks a distinction between proactive monitoring of content uploads and Content ID’s mandate to simply react to infringement notifications in accordance with US Laws. Google, which owns YouTube, spent nine years and $60 million developing the Content ID system, according to the company’s blog. It has led to $2 billion in payments to rights-holders.

Digital copyright in India…

India’s Information Technology Act of 2000 absolves online-platform liability if the company can prove that there was no knowledge of the infringement and if due diligence was taken to prevent the violation.

… and the US

The US Digital Millennium Copyright Act of 1998 creates a “safe harbour” (or exemption) for online service providers, exempting them from manually vetting or automatically filtering out copyright infringement. This places the burden on copyright holders to request the removal of violations.

Considering the span of European internet-related legislation, including the recently implemented General Data Protection Regulation (GDPR), the EU has consistently ruled far more strongly against Internet companies than the US.

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