After a year that was defined by the General Data Protection Regulation, another proposed shift in European Union law, involving the way copyright is regulated online, could create brand-new challenges for associations with interests in the region. Here’s what you need to know.
As I recently noted, the General Data Protection Regulation is still giving people headaches. But while data privacy concerns continue to linger about GDPR, I think associations may want to keep a close eye on what’s coming out of Brussels right now.
The European Union in recent months has been slowly rolling toward making some significant copyright reforms, with the goal of putting tougher controls in the hands of creators. Two portions of the copyright directive have received outsize attention among critics:
Article 11, which would potentially grant publishers copyright over their headlines and news snippets, allowing them to ask for a license fee for the right to use them—a clear shot at the bow of Google News and other link aggregators, such as Reddit. This act, a version of which already exists in Spain, has been nicknamed the “link tax.”
Article 13, which would require the use of a filtering tool to prevent the upload and allow for the pre-screening of copyrighted materials. It would specifically target platforms that allow for the upload of user-generated content, including Twitter, Facebook, and YouTube. This has earned the concept a nickname of its own: “meme ban.”
The two measures, which already passed the European Parliament in a preliminary form back in September and are now going through a negotiation phase (a “trilogue” between the EU, member states, and the parliament), have drawn grave concerns from observers in the technology space, particularly in the latter case.
Major tech firms and online activists—especially YouTube, which already runs its own content filter variant—see Article 13 as completely unworkable in its current form, and potentially threatening to the internet as a cultural medium. YouTube even went to the length of putting warnings on its videos last week to draw attention to risks it sees with the measure. A coalition called Don’t Wreck the Net, meanwhile, has worked to build momentum against the regulations.
Google, which owns YouTube, is also playing hardball on the link issue and recently suggested that if Article 11 goes through, it will shutter Google News, one of its most popular tools, throughout Europe—something it already did in Spain, leading to a severe drop in traffic among news sites in the country. (On the other hand, the final regulation in the EU will likely be less strident than what passed in Spain, which required aggregators to collect fees whether or not copyright owners were actually seeking payment.)
Creators, on the other hand, have a different stance on the issue, seeing it as a necessary change to help protect their digital materials online. For instance, the British music industry trade group BPI, after YouTube put up its warning to users, called out the platform for putting “carpet-bombing propaganda” online.
Copyright is complicated and full of exceptions that could make cut-and-dried stances harder to manage. For example: What happens in cases of parody?
“Article 13 has been carefully scrutinized over four years by the European Commission, Council, and Parliament,” BPI CEO Geoff Taylor told Music Business Worldwide. “These three institutions have rightly concluded that the value gap is real and that YouTube ought to take some responsibility for the content it publishes, just like other publishers.”
But copyright is complicated and full of exceptions that could make cut-and-dried stances harder to manage. For example: What happens in cases of parody? The EU has claimed that such uses would still be allowed, but automated filters like those that are needed under such a regulation would likely pick things up anyway. And what happens if a copyright owner can’t be found? Does that prevent the content from going online? YouTube CEO Susan Wojcicki recently cited the example of “Despacito,” which features a wide variety of copyright owners, as the kind of clip that might become too risky to host in the coming years.
So, where does this put associations, which run platforms based on user-generated content, as well as aggregation platforms? The good news is that the EU has shown some willingness to narrow its rules, a result of concerns raised by the Wikimedia Foundation, which staged a successful protest this summer. The rules [PDF] specifically were narrowed down to providers that “give the public access to a large amount of works or other subject matter uploaded by its users which it organizes and promotes for profit-making purposes.”
The regulations now specifically exclude many nonprofit and educational services, along with internet service providers and open-source projects. In other words, the rules intend to target large companies like Google and Facebook—meaning the compliance dangers are a bit less thorny here for many associations.
But that doesn’t mean there still aren’t problems. One example frequently cited is the regulation’s impact on Creative Commons and open-access content, which the Electronic Frontier Foundation warns could run into issues under both regulations, potentially damaging the business models of nonprofit platforms like ProPublica. The Wikimedia Foundation, whose use case was specifically discluded by the EU, notes that, even with changes aimed at protecting resources such as its own, an updated version of Article 13 “misrepresents the full impact of this proposed norm to the broader internet.”
And critics, such as EU Parliament member Julia Reda, ultimately argue that a universal copyright filter as implemented under Article 13 would simply be unworkable.
“Not even the strictest upload filter in the world could possibly hope to catch 100 percent of unlicensed content,” she explained. (YouTube’s own content filters, which are notoriously unreliable, provide a great case in point here.)
All of this adds up to a situation that could change the internet in the coming years, particularly on widely used search engines and social media platforms, which will feel the most direct impact if this goes through. And, considering associations tend to use the internet to reach their audiences, that’s a problem worth keeping an eye on.