Copyright Changes in the EU: A Revolution on the Internet?

The term “copyright reform in the European Union” does not sound sexy, until the Europeans are also told that the usual sharing of texts, photos, music or videos on the Internet will function much differently than before.
War on copyright in the digital space has been going around since the days users found how easy it is to share the available content by pressing “Ctrl C” and “Ctrl V”. If a creator once posted something on the World Wide Web, then it would be increasingly difficult to keep track of all the places the product appeared.

The goal to adapt copyright to the 21st century has been the same for all. However, the ways to achieve it have differed radically. In 2016, the fight started that earlier this year grew into pan-European mass protests and a petition signed by more than five million Europeans.
The irregularities were uncovered most intensely in connection with the growth of tech giants and social networking sites. They began to get unprecedentedly rich on foreign texts, music, video, or other copyright-protected content. Although they have not always offered the entire copyrighted materials, they managed to monetise parts, titles or excerpts of products of someone else’s intellectual activity. Marketers, advertising agencies and in recent years also institutions, associations, companies and even politicians and ordinary citizens, got to pay more and more.

According to Eurostat back in 2017 as much as 46 per cent of European companies claimed that they used at least one of the available social networks for marketing. Use of the Internet advertising was confirmed by 26 percent of companies. It was therefore only a matter of time for the parties concerned to say “enough”. Although countries, including Slovakia, have set certain rules, huge profits technological giants went directly to the pockets of publishers and authors only in a very limited manner – if at all.

Companies like Google, Facebook say that it is thanks to them that many media or author managed to reach more prospects. However, there are very few statistics that would confirm it. For example, when the Google News platform that brings together headlines and short lead paragraphs of other media as an overview of news, discontinued its service in 2013 from a Spanish web site, the media recorded a decrease of interest by six to 30 percent. A 2014 study from Germany suggests that a similar scenario reduced the traffic to the media of the Axel Springer publishing house by seven percent.

Copyright has become the centre of European attention in relation to the Brussels’ commitment to unite EU member states in the digital market for the Union to be able to compete on the worldwide stage. Although the block has set some minimum rules for the Member States set up in 2001, only few people across the spectrum of stakeholders thought some new rules adapted to current use practices and technologies to be unnecessary.
The real battle across the 28 EU states, institutions, publishers, platforms, and authors unleashed with the first draft of the new directive.
There were many hoaxes in the long campaign. Some claimed that Brussels was going to eliminate funny photo remakes known as memes. YouTubers feared a ban of parodies, or cover versions of songs. Some more aggressive voices even persuaded of disastrous scenarios of restricted freedoms of expression and the Internet in general.

Improving licensing practices, cross-border licensing across the Union, access to copyrighted content for schools, scientists and researchers, and better availability of European productions on on demand video platforms (VOD) such as Netflix or HBO Go, were proposals accepted with optimism.
However, two of the most controversial articles were associated with miscellaneous and often false information: 11 and 13.

Under Article 11 of the proposed directive, the publication of more content on an on-line platform that exceeds the range of single words or very short statements requires a license agreement between the author – or the copyright holder – and the platform. In practice, this means that sites like Google, Facebook, as well as smaller companies in Slovakia like Zoznam, will have to gradually enter into contracts with thousands of rights holders. Although it should be simplified licensing, the question is, who gets the real power over what content is available. Platform may start to select and the access the greatest of them may not be granted to anyone. One positive could be undoubtedly a faster identification of false content, hoaxes or conspiracy media that would simply not have any contracts with the platform.

Nevertheless, the legislation does not guarantee that the license fees will actually be paid to the actual author, or that the fees will not end up in the pockets of publishing houses and associations that represent authors. They will be much more powerful because they can make deals directly with technological giants. The opponents argue that this issue clearly shows that content creators were the last ones of whom the EU-wide legislation engineers thought.

Article 13 triggered even more controversy. Platform where users upload content will have to engage systems to distinguish whether a user’s submission complies with all copyright conditions and whether the platform has made a licence agreement with the author. So if a user shares an article of a Slovak daily on its Facebook profile, a Facebook’s filter should check whether the specific media and the social networking site have a valid licence agreement. In this regard, the on-line platform assumes legal responsibility for its users. In the last debate on the directive, MEP Richard Sulík likened this process to the operation of a parking lot: “It is like if a car park operator should be responsible that a car parked there is not a stolen one.”

Some control systems, also referred to as upload filters, are used today by YouTube in the video production sector. Google, which owns YouTube, has invested millions in these, yet still not working to meet the requirements of the new legislation. For smaller platforms or sites such a requirement could lead to their discontinuation.

The problem is also an exception to these conditions. So called “Micro and small enterprises” could avoid the obligation of controlling user content or licensing to avoid only if it meets all of the three specific criteria: annual turnover would be less than ten million euros a year, the services would be offered publicly for less than three years, and the platform would have to be used by fewer than five million unique users per month.

The exemption for small and medium-sized enterprises was also a condition presented by the Slovak delegates at the negotiating table. Organisations representing startups or small and medium-sized enterprises say that in the technological world there are no micro-enterprises that meet all the criteria that exist or make money. In spite of the controversy in the exemption, the Slovak Republic endorsed the entire text of the legislation in the EU Council.

The issue of copyright did not earn much attention of media in the last stages of drafting the legislation in Brussels. Print, radio and TV have been usually happy to receive press releases from agencies. Paradoxically, they were one of the stakeholders in the fight for the European copyrights. There was no balance in the information provided by publishers. If a rebuttal came to the fore, then the media houses would make it look just like an opinion of the “rich and greedy” companies which, moreover, were not based in Europe. There were growing suspicions of lobbying and accusations on both sides of the barricades.

Julia Reda, one of the youngest MEPs in the European Parliament, mobilised the community of young people not only her home country of Germany, but young people across Europe refer to her. A tiny MEP discusses passionately the possible impacts, pointing out for months that the legislation in its current form does not protect small publishers, but throws them at the mercy of publishers and tech giants. It was Reda who was blamed for trying to ruin the legislation because of the companies behind it.

Reda found strong support among the Internet community. Twitter and Instagram were flooded by #SaveYourInternet, which she made popular. It was mainly the young people in countries like Germany, the Netherlands, Belgium who took to the streets and demanded to save the Internet. “The current wording of the legislation is a farce, which is comparable to the “Flat Earth” movement in terms of denying reality”, one of the German activists, Sascha Lobo, said in Der Spiegel. The activists claim that MEPs and EU bureaucratsand national governments do not think enough of how young people use the Internet today and the adoption of the legislation may therefore lead to irreversible changes across the creative industries of today. The last protests organised in over 70 European cities gathered tens of thousands of mostly young opponents of the directive.

The text of legislation has already been approved by the European Commission and the EU Member States. It is the European Parliament to have the last word. In the last week of March, the 751 MEPs met and voted on the Directive en bloc – only five votes decided that Articles 11 and 13 would not be approved separately.

Most MEPs finally approved the entire Directive on March 26th. The current users’ ways of sharing on the internet will be changed soon significantly, and we will have to forget the boundless freedom of the online ocean. The EU Member States will have to incorporate the directive into national law within the next two years.

For more information about the process of creation and adoption of legislation on copyright, go here.

Lucia Yar

The author is an editor of EurActiv Slovakia