RUTHFULLY YOURS

Imagine an internet in which users can’t freely blog, parody, share material, or remix content – an online experience in which linking, code-sharing, and the unfettered use of art and images would be nearly impossible due to legal limitations.  Unfortunately, this scenario – a restrictive internet culture – may soon be a reality in the European Union with the recent passage of the European Unions Copyright Directive.  This new E.U. decree, which includes provisions for filtering and surveillance, could have a chilling effect on internet creativity and innovation, potentially increase censorship, and impose new market barriers for businesses worldwide.

The new regulations were originally proposed two years ago as part of the E.U.’s Digital Single Market policy that applies to 28 E.U. member-states and the four non-E.U. states of Iceland, Liechtenstein, Norway, and Switzerland.  Essentially, it could have a global impact on non-E.U. countries across the world similar to the effect of the E.U.’s 2016 E.U.-wide data protection rules created under the General Data Protection Regulation (GDPR).  The GDPR took effect in May this year and standardized data protection laws and set guidelines on controlling personally identifiable data.  The Copyright Directive imposes requirements that will change the way netizens interface with online content by imposing mandatory upload filtering, a link tax, and certain prohibitions on user-generated content in public spaces.  It requires online platforms to implement privacy-killing filtering systems that will ban content usage under the justification of copyright protections.  Platforms will be held liable for copyright infringement and fines that could threaten their economic viability.  To add to the confusion, the directive is just that, a suggestion, so each E.U. and non-E.U. party must create its own interpretation of the laws.  The result could be that all 28 E.U. member-states have their own separate definition of what part of a link can be used and copyrighted.

As part of the proposed Copyright Directive, bots, applications that run automated tasks, will act as censors and arbitrarily decide what content can be accessed and shared or even deleted without the consent of the intended user.  No technology will exist to distinguish between the outright copying of material and various forms of commentary.  Under the E.U. directive, revenue streams could be claimed by publishers for small amounts of information, even tables, headlines, or images.  Uploading of research articles from online repositories will be forbidden, and non-profit education services and universities will have to obtain copyright licenses and install filters.  All data, research papers, and articles will exist behind a virtual paywall.  Articles for submission will need to be scanned for potential copyright violations.  Exemptions are proposed for research carried out “in the public interest,” but how that will be defined and who will be making those decisions are uncertain.  Exemptions could easily be decided along political lines, amounting to a form of point-of-view censorship.

More specifically, Article 11 of the new policies will require a mandatory link tax by publishers for using more than one word of existing text from a given article unless the user has previously purchased a license from the news platform in question.  News sites will be free to determine their pricing structures and approve or reject customers based on criteria they alone determine.  This could mean that a particular website could theoretically reject a buyer who might critique content and favor one who would comment approvingly.

Article 12a will prohibit the posting of photos or videos of sports events under the pretext that the content and images belong to the organizers who have total authority on how they will present or promote their matches.  Images captured in public arenas that incidentally contain copyrighted art or other objects are verboten with no exceptions for “user-generated content.”  In other words, a family photo taken at a soccer game may not be permitted on Facebook.  A shot at an art gallery that includes a painting in the background could violate the letter of the law if texted.  According to the Electronic Frontier Foundation (EFF), an international non-profit digital rights group based in San Francisco, the E.U. even rejected a proposal to make it legal to photograph street scenes without conflicting with the new copyright laws.

Under Article 13, most platforms will be required to utilize filters that evaluate content and censor any copyright infringements.  A letter of protest to the European Parliament president, signed primarily by I.T. community members, characterized Article 13 as taking “an unprecedented step towards the transformation of the internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.”  This directive could severely limit connectivity and the freedom of digital expression by favoring publishers and equipping them with the power to extract royalties and block content.

The European Commission also proposed new rules requiring removal of terrorist content from platforms within one hour of posting, subject to penalties of up to 4% of the hosting company’s annual global revenue.  Previously, the effort to limit terrorist content online was voluntary.  It was formalized by the E.C. due to the increased number of European terrorist attacks that have resulted from internet misuse.

According to the EFF, websites will be required to pay the link tax to news publishers to use any quoted text from an original article and the fee may not be waived.  The fact that no published material can be freely used will have a profound effect on what information is available to the public.  Complex filtering systems and copyright infringement liabilities will involve costs that far exceed the financial resources of all but the biggest platforms, such as major internet players and mainstream media.  The increased staffing requirements to monitor and adjudicate legitimate versus unlawful content usage will be beyond the means of smaller platforms and non-profits.  Plus, witting or unwitting false copyright claims could be made that would delay or suppress the publication of material critical for all kinds of end-user decision-making, the formulation of political perspectives, voting patterns, the development of new technology, and beyond.

In the case of filtering errors, platforms will not face a level playing field when appealing a blocking decision.  Small businesses will find this a difficult and expensive hurdle to overcome, whereas larger entertainment and news companies will wield more clout to overturn instances of incorrect filtering.

Now that the E.U. Copyright Directive has been passed, closed-door meetings will begin between representatives of member countries and the European Union to finalize the language to be presented to the European Parliament for consideration.  The 28 E.U. member-states will then devise and enact their own versions of the legislation, potentially creating a legislative nightmare.

It remains to be seen how this newly mandated regulation of the content and practices of internet companies will impact the formerly free and unfettered internet.  In the words of the EFF on the day the Copyright Directive was adopted by the European Parliament, “Today, Europe lost the internet.  Now, we fight back.”