Opposition to Article 13 in EU Copyright Directive is Misguided

July 2, 2018

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Europe’s anti-copyright crowd has their feathers in quite a ruffle. The European Parliament is set to vote on the Copyright Directive, a set of updates to modernize copyright rules for the digital era. Among these reforms is Article 13, a requirement for online platforms, like YouTube and Facebook, to take “appropriate and proportionate measures” to protect intellectual property rights online.

Unfortunately, anti-copyright activists, such as German MEP Julia Reda of the Pirate Party, claim these rules would harm fundamental rights and they have launched a #SaveYourInternet campaign to stop the “censorship machines.” Their cause has gained traction with angry headlines declaring “The End of All That's Good and Pure About the Internet” and “New EU Copyright Filtering Law Threatens the Internet As We Knew It.” While it is clear that this policy discussion has morphed into an emotionally charged battlefield where sound bites and slogans trump facts and reason, that does not mean those peddling fear are correct.

Those opposing this measure generally believe that enforcing basic intellectual property rights online is a fundamental threat to freedom of expression. These activists often claim that rules such as these would limit free expression, online commentary, political criticism, and, most distressingly, cat memes. But the proposed rules do nothing of the sort. In fact, the rules are not even that novel. As even supporters will admit, the Copyright Directive is merely codifying in law the obligation for sites like YouTube to take measures to ensure that unlicensed copyrighted works are not made available on their digital platforms.

Anti-piracy tools are necessary to proactively manage uploads and submissions on user-generated content sites. Without them, content creators are at the mercy of digital thieves who can upload pirated content faster than creators, or their lawyers, can request them to be taken down. Indeed, before many online platforms began voluntarily implementing content recognition systems to ensure that known pirated content could not be re-uploaded, artists and other creators were on the losing end of a never-ending game of Whack-A-Mole.

The EU Copyright Directive would align European policy with the long-standing provisions in the U.S. Digital Millennium Copyright Act (DMCA). The DMCA, written over two decades ago, created a basic notice-and-takedown regime that affords online intermediaries liability protection for the content posted by users provided that they remove known infringing content when it comes to their attention. In addition, the DMCA requires that these sites accommodate “standard technical measures” as part of the requirement for their liability protection. As defined in the DMCA, these measures include “technical measures that are used by copyright owners to identify or protect copyrighted works.” Among other requirements, these measures must be “available to any person on reasonable and nondiscriminatory terms” and cannot “impose substantial costs on service providers or substantial burdens on their systems or networks.” In other words, as the EU Copyright Directive requires, they must be “appropriate and proportionate.”

In line with this flexible language, instead of being overly prescriptive and locking member states into one specific “technical measure,” the pending EU Copyright Directive wisely asks member states to facilitate cooperation between the various stakeholders to define best practices, such as appropriate and proportionate content recognition technologies and processes to expeditiously address complaints, disputes, and redress. Given how technology is constantly changing, this is an exceedingly reasonable request. Furthermore, this is exactly the type of multi-stakeholder cooperation that parties on all sides often request to avoid heavy-handed rules that favor one party over another.

Given the scale of the Internet, the only way to minimize the cost of managing so many user-generated uploads of movies, music, photos, etc., is to use automated techniques. No system—whether human or computer—is error-proof in its ability to identify all infringing and non-infringing material, but that does not mean platforms should not have an obligation to limit copyright abuses on their platforms. The pervasiveness of online piracy seriously harms those working in the creative industries, including composers, performers, technicians, producers, and more. In addition, easy piracy limits the ability of content producers to create legitimate business models for selling digital content.

While opponents of copyright reform always rush to publicize the cases whereby automated content filters have mis-identified material, the occurrence of this type of error is actually quite rare, especially when considered alongside the growing number of pirated material online. MEPs would be wise to ignore calls from tech populists, who oppose virtually all efforts to modernize copyright protections for the digital age, to scale back this proposal and their hyperbolic claims that any regulation will “break the Internet.”

Article 13 of the proposed EU Copyright Directive is a reasonable proposal that protects intellectual property, preserves consumer interests, and fosters the European digital economy, and the European Parliament should proceed with this reform.