Some thoughts on the Copyright Directive

Much has been written about the new EU initiative currently awaiting approval by the Council. Few issues seem to spark such fierce debates within the internet and technology community as those pertaining to copyright enforcement. This is nothing new. What is new, however, is perhaps the extent tech giants are able to capitalise on this in order to push their agenda. Propaganda is a strong, loaded term but it is difficult to find another way to describe what is effectively the targeted lobbying of the general public via corporate communications. In order to understand the current regulatory environment, as well as the extent of the backlash (i.e. its motivations), one must first look back almost 20 years, to the Electronic Commerce Directive.

Two decades i.e. a millennia in internet years

It’s fairly uncontroversial that the pace of technological change vastly outstrips that of the legislative process. 20 years in real time is basically a millennia in computer years. Nevertheless, the e-Commerce Directive, until recently, has remained the basis for determining intermediary liability. It has been incredibly successful in this regard, largely by immunising ‘information society services’ from liability with regards the content that flows through their networks. Suffice to say that there is a reason that household tech giants exist, and this is because policing the content they publish and profit immensely from has, for the most part, not fallen on them but instead on charities and those that produce the content (ostensibly not charities). This has made UUC platforms incredibly lucrative. Network effects + free content + ad revenue = billion dollar industry.  

Regulatory delays has its costs

The economic adage that there are no solutions, only trade-offs rings true here: ‘publishers’ (or more accurately, ‘platforms’ since it is not always that an online intermediary will be deemed a publisher, if ever) have done very well off the back of content produced by others and with no real responsibility for it. This has far-reaching implications for business but also the wider public. Free speech, fake news and access to content are all relevant. However, now that these platforms have matured, having been given the legal room to do so, the tables are finally beginning to turn. As with all change, and perhaps especially with change that threatens to disrupt billion-dollar businesses, there has been a lot of protest.

None of the foregoing is to say that tech companies don’t provide anything. Many resources are expended in developing whizzy platforms that can keep up with somewhat fickle and impatient consumption patterns. They provide the necessary infrastructure for the ‘new’ media to flourish. I say ‘new’ in inverted commas because while the technology (i.e. the speed, volume and on-demand nature of it all) is new, ultimately the structures for delivering it are not so new (or at least not that different in principle from things like radio, television and telephony). Instead, the safe harbour regime is what cradled and nurtured these nascent entities to build the infrastructure needed, by way of a sort of de-regulatory economic stimulus.

And thus after 20 years of decline, it is only now that content industries, like the music industry (and perhaps journalism too?) are finally seeing some growth. Obviously not back to pre-internet figures, but finally an up-tick. This is quite remarkable given they have still been producing content all these years with tightened belts. The point is that the proceeds of such content have gone to the conduits and not the producers themselves. Why engage in licensing discussions over content if a third party uploader will provide it to you for free? Expensive and time consuming.

Enter the resistance

So if you were a giant ‘mere conduit’ that is in practice if not in law ‘publishing’ all sorts of content, how best would you resist a change that obliges you to licence and at least kick back some of that revenue to those who created it? How about publishing ‘public information notices’ instead of the ads you would normally show users informing them why a new EU Directive threatens the very nature of the internet and all the memes users hold dear? For someone with extensive research experience, such claims made me chuckle. But for a general user, they are taken for truth and stick with incredible efficiency. It’s quite ironic given that most people online are at once incredibly critical yet nevertheless so willing to believe sensationalised claims.

Needless to say, the claims of ‘censorship’, ‘the end of the internet’ and a ‘ban on memes’ are grossly overblown. For one, banning memes would be like trying to ban books. You could do it, but only in a dystopian world with infinite resources for (a very high tech) law enforcement agency and only in the offline world. In fact, even the book ban is a bad analogy because books take a lot more time, effort and intellect to produce than a meme.

Secondly, content filters. Not only do these already exist (see, e.g., YouTube’s Content ID system), but they have not resulted in ‘breaking the internet’ or preventing people from sharing content. It also is unlikely to bring disproportionate costs on the small billion-dollar business that is Alphabet (they could even just license this system to other platforms if they wanted to; not that they would because they’re a giant monopoly anyway). Recitals to the Directive are not that ambiguous as to who the ‘filtering’ requirements would apply to either – only the largest of intermediaries, and not start-ups.

Lastly, copyright exceptions. It’s true that automated systems make poor legal analysts. Luckily, we do not live in a Judge Dredd dystopia. As such, there is always an individual behind a takedown notice and systems like Content ID. Counterclaims are possible and will remain. That’s the entire point of having a legal system at all, rather than what has effectively been a technological wild west for the past 20 years. Will this cause overblocking? No, it will only force free speech ‘advocates’ like YouTube to put their money where their mouth is — they can either license the content or overblock. Either way the onus will be on them, rather than a third party, like an actual content producer, to defend the choice to takedown the illicit content if they have refused to pay a fair share for its publication. They are, after all, the more technologically sophisticated party, and so should be accountable as such.

A final irony

It’s interesting that the content industries have been side-lined by the public for so long, despite their consumptive appetites for entertainment. It is hard to understand why the copyright industries are so shunned by the general public. My guess is propaganda and bad press. Yes, it has taken some time for enforcement efforts to align with licensing efforts, but much of this is owing to delays in updating the regulatory framework. What ‘copyleft’ protesters and corporations fail to acknowledge, however, is that a lax copyright regime directly helps fund criminals who use the proceeds for behaviours that no one in their right mind would dream of protesting over. Further, in an age where big business is already perceived by the public as having too much power, why are so many in the public willing to hand them even more power over our news and other media by defending their position? They have had their day, or rather their two decades and still will regardless. Let’s allow the pendulum to swing back in favour of creatives again.

Further reading is available here.

— Hernán R. Dutschmann