Committee on Civil Liberties, Justice and Home Affairs I

In essence the topic at hand is about the future of copyright in the European Union and the surrounding nations in the wake of the Directive on Copyright in the European Union. Fears surrounding preemptive censorship and the stifling of the creative, vibrant internet Europeans have come to know have been raised. On the other hand, copyright holders, such as musicians, film producers and other creators of original content are in jubilee. Considering both sides of the argument, what do we consider to be the optimal copyright legislation?

 

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Definition of Key terms

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• Copyright is defined as the legal right to sell, reproduce and publish the matter and form of something[1];

• Copyright infringement is the unauthorised use of copyrighted material such as text, video, audio, music, software and other original content[2];

• Fair use is the right to use copyrighted material in a setting in which the original content is being transformed into new content, such as a review, critique or parody. This requires that the transformed content acts as a substitute to the original content, but rather transforms into something other than the original[3].

 

 

Relevance of the Topic

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The committee on legal affairs (JURI) in the European Parliament approved the proposed new legislation in regards to copyright in the digital single market in February 2019. In March of the same year the Directive on copyright in the Digital Single Market was approved by the European Parliament.[4]

 

Article 13 of this Directive states that the digital platform in which user-created content is shared on will stand responsible for any copyright infringement that take place on said platform. Member States of the European Union and the European Economic Area (EEA) are now in the process of creating legislation set on following the Directive.

 

This entails that platforms whom host user-created content will have to negotiate with copyright holders on behalf of their users thereby creating licensing agreements. This might also entail that platforms who host user-generated content, such as Youtube and Facebook, could avoid negotiating with the bigger copyright holders and therefore implement stricter regulations for European content to avoid costly sanctions. Therefore, user-generated platforms that are looking to avoid penal sanctions from would implement heavier copyright detection software that could strike content that normally is not an infringement on intellectual property. [5]

 

 

Key Conflicts

 

The most pressing conflict would be the one between platforms hosting user generated content using copyright detection software and uploaders.  Platforms such as Reddit, Youtube and Facebook, where astronomical amounts of content are being published, such as 400 hours of video every minute on youtube (in 2015)[6], have to rely on software and computing to competently look through all content being uploaded to their platforms. Youtube's Content ID system is an example of this. The biggest problem of this system is that the creators could feel silenced and stifled by ‘overzealous bots’[7] removing content that is within the realms of fair use. Critics claim that the large platforms, in an attempt to not get sanctioned, would rather remove too much content than too little. Some have claimed this will “kill off vibrant internet culture”5.

 

 

Stakeholders

 

National governments are the ones charged with implementing legislation that is in line with the goals of the Directive on Copyright in the Digital Single Market, and therefore they are one of the key players. We can expect the process of creating new legislation to take up to two years should the Directive not meet any more resistance.

 

Copyright holders and platforms hosting user generated content both have an important role to play in that they are expected to negotiate the use of otherwise infringing content on said platforms. Copyright holders, such as record labels, movie production companies, media outlets and others who create media content, could have a significant role in the event that national legislation centers around their offense of their product being used on user-generated platforms without their consent. Likewise, the platforms have a significant role in negotiating with the copyright holders, and ensuring that no infringements take place on their webspaces.

 

Copyright holders interestingly have banded together into organisations in order to promote their own interests. An example of this is Europe for Creators, a gathering of comedians, writers, musicians, producers and filmmakers from Europe. They work in favour of the Directive on Copyright and most notably in favour of article 13, considering they host the web page Article13.org.[8]

 

 

Existing Measures and Current Legislation

 

Current legislation on American platforms such as Youtube and Facebook can be traced to the “Fair use act” of 2007, which states that creators who utilize  material owned by another copyright holder are not liable for copyright infringement so long as their work is “transformative”[9] in nature and does not act as a “market substitute”[10]. The Council noted in a press release surrounding the adoption of the Directive that in no way should take away the freedom of those creating parody, review, criticism, caricature or pastiche[11], which are forms of expression within the realm of fair use.

 

Software such as Youtube’s Content ID[12] exists and aims to ensure that copyright infringements do not take place on their platform. On Youtube, the copyright claimant is responsible for what happens to their claimed content, and can decide what they wish to do with the content that has been stricken with a copyright claim. In the future, once the Directive on Copyright in the Digital Single Market becomes part of national legislation, it is reasonable to assume that this approach might not be sufficient in terms of European content given the implication that the platform will have to take full responsibility should any infringements happen.

Political opposition within the EU system has taken place since the Directive on Copyright in the Digital Single Market was passed in Parliament. The text for the proposed directive was firstly rejected upon entering the European Council in January 2019[13] but was later revised and approved in April 2019. More recently, Poland has submitted a complaint to the Court of Justice of the European Union claiming the system might result in “[...] preventative censorship, which is forbidden not only in the polish constitution but also in the EU treaties”[14] [15]

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