EU’s new copyright law: What’s wrong?

On March 26, European Union’s Parliament passed a copyright law that many think would change the way content is used and disseminated on the World Wide Web, which ironically and quite interestingly turned 30 this month. Wikipedia founder Jimmy Wales, arguably the most popular critic of the new EU law, tweeted that “You, the Internet user, have lost a huge battle today.” According to Wales, the free and open internet is being quickly handed over to corporate giants at the expense of ordinary people. And he is not alone. World Wide Web founder Tim Berners Lee termed the law “an imminent threat to the future of the internet.”

But the EU law — which arrived following a nearly three-year demand to reform EU’s copyright laws that many businesses and activists felt was stuck in a time warp and had snowballed into a controversy even when European lawmakers were discussing it as many felt it would bring memes (parody content) and gifs under copyright — has famous supporters as well. Beatles star Sir Paul McCartney said the new rules would help musicians in the digital age gain their fare share of royalties and rights from the technology companies that have been using such content at will and free of cost.

On their part, the EU lawmakers say the law is the need of the hour. The two EU commissioners — Andrus Ansip and Mariya Gabriel — who mooted the new law said it would strengthen Europe’s creative industries, which represent 11.65 million jobs, 6.8 per cent of GDP and are worth €915,000 million a year. EU member-states can take their own call on the law and they have a two-year window to act on it.

All that sounds kosher, but it is a fact that Article 11 and Article 13 of the new law will throw a spanner in the works of the Web, especially how user-generated content is uploaded on platforms such as YouTube. Even though the controversial new directive has spared memes (parody material that feature stills and video footage from movies, books, etc.) and the Graphics Interchange Format or GIF (a short, animated video), the new framework will end up imperilling the way people use copyrighted material online.

Articles 11, 13

To understand how, it is important to know how Articles 11 and 13 actually work. While Article 11 says search engines like Google and news curation platforms (again, Google News) must pay to use links from news websites. The more contentious Article 13 wants to take big technology firms to task for all non-copyrighted content appearing on their platforms. Article 13 basically deals with how online content-sharing services should deal with content (movie clips to news stories) for which someone holds a copyright. It says such services must licence copyrighted material from the original rights holders. And that’s easier said than done in the vast universe of the Web.

The Article covers pretty much all services that help people surf for stuff that is uploaded online, and that would include YouTube, Soundcloud, Vimeo, etc., even though there are some exceptions such as online encyclopaedia that do not target profits (like the wikis), open source software development platforms, cloud storage services, online marketplaces and communication services. The rules are applicable for pretty much all services, except those that are less than three years old in the EU or have an annual turnover of less than $11.2 million.

If a service provider breaches that clause, it will have to pay penalties. For instance, if you are a die-hard fan of AR Rahman living in the EU and want to upload an ARR song on YouTube for fun or to share among friends, you may not be able to do that easily now. Or, if you are a political campaigner, or an activist who wants to share some archival footage of a strike and trigger a debate around human rights violations of a company or an agency, in all likelihood it may not get uploaded because you may not be able to bypass the filters content platforms may put in place. The company, say YouTube, must make all the ‘best’ efforts to get permission from copyright holders for all the content uploaded.

Now the problem is it is not easy to seek and buy licence for all the content that goes up on YouTube. So, eventually the companies will be forced to introduce mass-filters that would make uploading content a legal and logistical nightmare. Lee-promoted World Wide Web Foundation says such a move will put people’s right to free speech at the mercy of “an algorithmic lottery”. Also, it will help governments in the EU and/or elsewhere use these clauses to crush dissent. Activists say that big tech companies may be able to introduce the checks and balances but small entities will end up shutting shop, paving the way for more concentration of power in tech business.

Global ramifications

Clearly, the EU introducing such a convoluted and ostensibly contrarian law can have global ramifications. The way Europe has been dealing with issues such as user data and online privacy has caught the attention of policy-makers and rights activists across the globe, especially after the EU introduced the stringent General Data Protection Regulation (GDPR), touted to be the most important data privacy regulation in the history of digital polity.

Even the US lawmakers now look forward to the EU for cues. In such a context, the new copyright directive will trigger a global debate and the results of which are going to change the way we use the Web.

That said, the BigTech companies such as Google and Facebook must share some blame for pushing lawmakers such as those in the EU to get paranoid over what is uploaded and shared on the platforms, especially following the worldwide campaigns and concerns around the spread of fake news, psychological profiling of users to influence their behaviour in the context of the infamous Cambridge Analytica data abuse scandal and the widespread concerns over violent, harmful content being spread on platforms such as YouTube that target children and other vulnerable communities.

As Roger McNamee, a former investor of Facebook notes in his recent book Zucked: Waking Up to the Facebook Catastrophe, the tech companies has a tendency to shrug off responsibility for the damages caused by content they disseminate. When challenged on multiple global legal platforms and rights forums, companies such as Google and Facebook did not express their willingness to enhance their efforts to filter such content and clean up their act. Evidently, such lethargic, revenue-focussed approach has had its fallouts and lawmakers are clueless about tackling most issues relating to the digital universe and the confusion and cacophony can only add to the legal wrangles.

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