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« on: December 08, 2018, 12:20:32 AM »
A man named Henry Fraser, who lives in London and has a PH.D in Copyright law, has some insight into the issue, which I find somewhat comforting:
"The short answer is: no.
Copyright debates have a strange way of getting very heated (look at how the question I’m answering frames the issue!) There’s so much spin from either side that it’s easy to be misled. Copyright industries like to tell a story about how ruthless tech giants leave artists starving. Tech giants like to tell a story about how copyright industries are going to destroy the internet, and lock down free expression.
Let’s cut through the spin a little. Let’s quickly review some key details of Article 13 and the other contentious provision in the new Copyright Directive, Article 11. Then we can dive into how copyright really works.
To understand copyright, we need to look beyond the issue of who is allowed to do what, and what is forbidden, according to the letter of the law. What really matters is how the law organises incentive and power structures, shares out resources among various stakeholders, and nudges the deals that they make.
Article 11
Gives press publishers (news media) a right to prohibit ‘communication to the public’ of their content.
Targets for profit online sharing of news stories.
Commercial news aggregators (like Facebook, Google and Apple News) will have to get permission from copyright rightsholders (in this case, news media) to show news snippets or link to the stories.
The usual way to get permission is to pay the copyright rightsholder (author or some commercial distributor like a publisher) for a copyright licence.
Article 13
Applies to online services that provide the public with access to “large amounts of works or other subject matter uploaded by their users” (think YouTube or Facebook).
Requires them to ‘take measures’ that are ‘appropriate and proportionate’ to:
ensure that agreements with copyright rightsholders function; and
prevent the availability of works ‘identified by rightsholders’.
Mentions, as an example of these kinds of ‘measures’, the use of ‘effective content recognition technologies’.
Requires services to provide rightsholders with adequate information and reporting on the functioning of the measures taken.
Is article 11 really a ‘link tax’?
Critics paint Article 11 as a ‘link tax’. Advocates of a free and open internet tend to dislike the idea of needing to get copyright owner permission to share a link.
I agree that requiring individual permission for every link, or even every publication would be untenable. Enforcing a permission culture could undermine the free flow of information and stifle expression without doing much good.
Unless copyright licensing technology improved drastically, the time and cost of getting permission would almost always be prohibitive – especially for small-time players and non-commercial internet users. Rightsholders might not be much better off, and ordinary internet users might well be much worse off. Large commercial players might be able to afford these costs, but if smaller and independent voices were silenced.
This would be bad for expressive diversity and public discourse, because we’d mostly be getting information from entrenched, wealthy, corporate sources.
But we’re not talking about a generalised link tax.
It’s worth keeping in mind that EU copyright law about posting links is quite nuanced. Non-commercial sharing of a link, for example, doesn’t require a licence or licence fee, so long as the sharing didn’t come about as a result of hacking a paywall.
Article 11 is very much targeted at for-profit news-aggregators.
It is also softened by Article 12, which opens the door to creating a government-administered collective licensing scheme. This would prevent copyright rightsholders from locking anybody out, while at the same time ensuring new publishers were remunerated for commercial link sharing.
The average internet user is not going to have to pay a link tax to share a news story on Twitter or Facebook.
Instead, Twitter and Facebook will need to do deals with news publishers to ensure they have permission to display shared news stories in user feeds. News publishers may even ultimately choose to license their content for free.
Whatever happens, platforms like Facebook and Twitter are unlikely to pass the cost of such licences on to their users. Their business model is based on charging advertisers for exposure eyeballs; not on charging users for access to information.
Is Article 13 really a ‘meme ban’?
Again, the ‘meme ban’ label is rather exaggerated. True, there are burdens on platforms for user generated content (like YouTube), and some user generated content may end up being filtered, blocked or taken down. But ‘ban’ is the wrong word to describe what is likely to happen.
Requiring online platforms to ‘take measures to uphold’ existing agreements is hardly radical. If there are agreements in place with rightsholders, and platforms like YouTube don’t fulfil their obligations, they’d be in breach of contract anyway, with or without the Directive.
More troubling is the requirement to take measures to prevent the availability of content ‘identified by rightsholders’. On one reading, this might mean that online platforms have to take down every instance of a particular work that a copyright owner has identified as no-go. On this reading, if Disney says ‘no Mickey Mouse videos on YouTube’, then YouTube will have to take actives steps to find and take-down all Mickey Mouse videos on the platform (except where copyright exceptions apply).
That would place a fairly costly responsibility on the shoulders of YouTube and like platforms. I’m not convinced that the cost would be unjustified (I’m probably in the minority here), but there is, anyway, a solid argument that copyright owners should share at least some of the cost and responsibility of identifying and removing infringing content.
On another reading, Art 13 might mean YouTube only has to take down specific, individual Mickey Mouse videos after Disney sends them a notice. This second reading strikes me as more likely. Again, it doesn’t do much to change the existing situation between rightsholders and content platforms. Under US law, which has effectively set the global standard there is already a ‘notice and takedown’ regime in place. If memes aren’t ‘banned’ and eradicated under current conditions, I don’t see why Article 13 would change this.
Content recognition
Most interesting, in my view, are:
- the specific mention of using content recognition technologies; and
the requirement to provide adequate information and reporting to rightsholders.
These elements make online services much more accountable to copyright owners. Rather than rightsholders having to track down every piece of infringing content by constantly searching for it and serving takedown notices – which is more or less impossible – the directive creates transparency about how copyright content is being used. That clarity can form the basis of fairer and more efficient deals between rightsholders and online platforms for managing content, and for a more efficient, co-operatively managed notice and takedown system.
On the downside, there is a risk that clumsy content recognition technologies will filter, block and take down everything that contains the smallest portion of copyright content, even if the use of the content is permitted under copyright law. This is where the idea of ‘meme ban’ name comes from.
I would be surprised if that ended up happening.
I don’t think Articles 11 and 13 are likely to bring about [The End of All That's Good and Pure About the Internet]( The End of All That's Good and Pure About the Internet).
It’s a mistake to think about copyright law as setting iron-bound rules. Copyright doesn’t dictate directly and exactly what happen to all creative content, and everything that’s done with it.
I think about copyright law as something more like the dealer in a card game.
The law gives the players (authors, content industries, online platforms etc.) their cards. But the outcome of the game is determined by how they play the cards. How they play the cards depends on their commercial interests. They can try to ‘beat’ each other, or they can try to look for win-wins. They don’t have to play every card, and enforce and exercise every right.
So we see many content businesses happily allow fans to create fan-fiction and fan-art using their copyright-protected content. They’ll take enforcement action when the copying and use threatens their bottom line, or impacts negatively on their brand. But they recognise that they can build buzz and increase profits by engaging fans in ‘exchanges of meaning’.
Laws like Article 11 and 13 have their most meaningful effects in indirect ways. They set a framework for negotiation.
Deals to be done
Google, YouTube or Facebook is not going to simply shut down overnight as a result of these laws. They have an interest in striking deals, because they rely on copyright content for their existence. While Google may have thrown its weight around in single countries like Spain (where it simply removed Google news in response to a law like Article 11), the entire European market is too big to walk away from. And copyright rightsholders rely on online platforms very heavily to disseminate their content.
The EU copyright directive is not, at heart, about ‘taxes’ or ‘bans’. It’s a signal to large online platforms that they are expected to play more nicely with rightsholders. What the EU laws do is shift the advantage between the sides. European lawmakers have been convinced (partly by the lobbying of content industries) that large online platforms like Facebook and Google have too much power, and have been using that power exploitatively. So they are dealing better cards to copyright rightsholders.
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