Hating the Right Thing for the Wrong Reasons: The European Copyright Directive

By Jelmer Herms

The Directive on Copyright in the Digital Single Market, commonly known as the ”EU Copyright Directive”, has not been without its fair share of criticism. It seems to be part of a broader strategy by the Commission to capitalize on the Internet’s limitless economic potential more and more, and rightfully so. However, one aspect of the digital space seems to be consistently underestimated by EU institutions: Online communities are generally hostile towards measures that even potentially limit the free flow of data.

It is no wonder that online forums like Reddit[1] as well as larger (oftentimes American) news outlets cried out collectively in fear over potential censorship, the end of creative use, and the death of independent news outlets.[2] Initiatives like #SaveYourInternet claim that the EUCD ”restrict[s] the ability of Internet users to consume content”, turning the newly formulated Internet culture wholly ”bureaucratic and restrictive”[3]. Despite these sweeping (and oftentimes hyperbolic) accusations, the text of the directive itself contains no such intentions. In fact, it claims to have the opposite effect: This legislation would be ”allowing wider access to and use of copyright-protected content”[4]. And in specific contexts, such as increased access to copyright-protected material for scholars, this directive does in fact afford wider access to such material. The real reason behind all this public backlash should therefore not be sought exclusively in what the directive actually does, but more so in what it fails to do. For example, it fails to give examples of feasible measures by which to implement the directive, leaving it unclear to both member states and online platforms where the responsibility for copyright enforcement lies exactly, but it also fails to engage citizens in a dialogue about the nature of the Internet.

Firstly, the issue of who is supposed to be responsible for copyright violations is a major concern of many online platforms. The EUCD, as it stands, aims to make copyright violations the responsibility of the platform as opposed to that of the user[5] with the ultimate aim of giving copyright holders additional control over their content. This responsibility for the platform, due to the fact that this is a directive as opposed to a regulation, is not explained in great detail. This uncertainty about what the platforms have to do exactly is causing a very reasonable fear among big companies like YouTube, Reddit, Imgur, Tumblr, and others about what the EUCD means for their platforms when it comes to copyright infringement cases: Are they going to have to go to court or pay a fine for every time that one of their users violates copyright regulations? Right now, this remains uncertain, and this fear and uncertainty is dangerous because online platforms only care about freedom of expression and open access to information exactly up until the point where it starts to hurt their revenue. The path of least resistance for these companies would not be to implement expensive and unfeasible ”upload filters” and to really push the envelope with regards to these technologies in any real way, but to simply deny or limit European citizens’ access to content that might potentially violate copyright policies. And what is there to stop these companies from doing this on a massive scale? The directive does not address it, because that’s not a question it set out to address in the first place. Nevertheless, the question has now been asked, and an answer does need to be found, because companies have no actual legal obligation to show consumers copyright-sensitive information. Consequently, there remains a very realistic fear among consumers that the result of this directive is not access to more data for EU citizens, which is the explicit goal of the directive[6], but a restriction of access to information simply because consumers happen to live in the EU.

The source of this hostility towards the directive is more complex than just this fear, I would argue. It cannot and should not only be attributed to lobbying and misinformation by interest groups or a lack of detail within the text. This outrage also results from citizens not having an equal voice in the one (philosophical but rather fundamental) debate we are supposed to be having: What is the nature of the Internet? Where the Commission sees a Digital Single Market that needs to be regulated like a market, many citizens would rather view the Internet as a global Wild West of information where nothing should be off-limits to anyone. Organizations like Pirate Parties International (the German branch of which is even represented in the EU Parliament) and many tech-savvy citizens see this open access to all information as a civil right. Despite these dissenting voices in Parliament and in the general public, the fundamental discussion remains unaddressed: Should access to information be a commodity to be sold and protected by copyright holders, or is online access to information a civil right for all EU citizens? If the Commission keeps assuming the former to be the case, as they make explicit in the very title of the EUCD, concerns about censorship will inevitably continue to emerge whenever digital legislation of any kind is introduced. This will have a definite negative effect on the public perception of the EU. Right now, it fails to market itself as a progressive and valuable ally in the struggle against online censorship and misinformation through an apparent unwillingness to discuss the issues that actually matter. Through this directive, a larger discussion about the role of the Internet has definitely come in to existence, this is true, but the quality of that dialogue still leaves much to be desired.

[1] https://dontwreckthe.net/
[2] https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban, https://www.theverge.com/2018/9/12/17849868/eu-internet-copyright-reform-article-11-13-approved
[3] https://www.saveyourinternet.eu/about-this-campaign/
[4] EUCD 4
[5] EUCD 29  
[6] EUCD 4

Featured image: Christopher Dombres, Flickr.

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