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The European Parliament has voted in favor of legislation that may strengthen online copyright laws at the expense of artists and other content creators, critics fear.
Two weeks ago, thousands of protesters marched across Germany in staunch opposition to the Copyright Directive and its controversial section called Article 13, which makes online platforms like Google, Facebook, YouTube, and Twitter liable for user-generated content that may violate existing copyrights. Another portion of the law, called Article 11, could make sites like Google News responsible for paying publishers for using snippets of their content.
Critics have characterized the bill as far overreaching in its attempts to reform the internet’s libertine characteristics. Tech companies have warned that Article 13 will force the implementation of expensive “upload filters” on user-generated content, which already have a reputation for poor parsing skills between actual violations and fair use privileges (e.g. for commentary, criticism, parody, news reporting, research, and scholarship). Contrary to protecting the rights of users, internet activists say these measures would turn large social media companies into censors and damage freedom of expression.
Advocates for digital reform have repelled such criticisms. Germany’s Axel Voss, portrayed these complaints as “fake news” to the Guardian. The member of European Parliament told the publication that the legislation “will not end the internet.” Record labels, artists, and some media companies have also come to the law’s defense, saying that the updated copyright protections will ensure that they are fairly paid for their content.
“Article 13 says that if you have a website that allows users to post content, then you are responsible for making sure that content is not infringing on copyright,” explained Columbia Law School’s Philippa Loengard to Hyperallergic over the phone. “And if it is, then you need to make sure it’s taken down.”
Loengard is an intellectual property law expert who focuses on issues surrounding the visual arts and entertainment industries as deputy director of Columbia’s Kernochan Center for Law, Media and the Arts. She believes the Copyright Directive has “very good provisions for artists,” some of which have gone unmentioned in media reports.
“It provides artists with more data, more opportunities for remuneration, and more chances that their work will not be misappropriated or used without their knowledge,” Loengard said. “Many artists don’t like going to court because it’s very expensive. [Content platforms] will have to provide non-courtroom remedies to artists, like alternative dispute resolution options. And if you’ve licensed something and got remuneration that’s disproportionately low, you’ll have a chance to renegotiate.”
However, upload filters may have an adverse effect on some artists. “If you’re someone who makes work by remixing or by appropriation, then your work could be taken down,” the law professor said. “The European Union’s fair dealing laws are much more restrictive than America’s fair use laws. Things like parody and satire are still accepted, but nothing is foolproof; there’s no way any system can replace human judgment.”
She added: “The question here is who’s bearing the burden of making that judgment. The EU is flipping the American system and saying that ISPs [internet service providers] bear the burden. They are in the best position to hone a content system that works well.”
Nevertheless, people who make their money off the internet are distraught by the passage of Article 13. Critics believe the law is particularly dangerous for online music and art communities where the sampling of other people’s work is common practice. There’s also concern that the directive could greatly impact video game streaming on platforms like YouTube and Twitch, which has bloomed into a multi-billion dollar industry in recent years.
Jimmy Wales, the founder of Wikipedia, posted on Twitter shortly after the European Parliament voted on the measure. “You, the Internet user, have lost a huge battle today,” he wrote. “The free and open internet is being quickly handed over to corporate giants at the expense of ordinary people. This is not about helping artists, it is about empowering monopolistic practices.”
Loengard would disagree. “Certainly there are some who are concerned, which comes from a feeling that fair dealing exceptions will be ignored,” she said. “I understand that, and we always want to make sure freedom of speech is dealt with reasonably. In general, I think Article 13 is a positive.”
Still, there’s a chance that legislation in Europe will change the global precedent from a compliance standpoint. “If you are a large ISP and you have branches in Europe and the United States, it may be wise to implement changes worldwide,” explained Loengard. Such a policy shift would make logistical sense after companies have invested their resources and time in adopting the new Copyright Directive. After all, people tend to find their way around walls and could use more lax American protections as a backdoor into the European internet.
Some legal analysts believe the fight for Article 13 is not over, and that European courts will have a key role in interpreting the law and carving out space for social media companies to do business. Besides, there’s still time for lawmakers to address complaints. The European Council has said that it will approve the measure, but implementation will take two years.
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