On Tuesday, at the end of a process that lasted more than two and a half years, the European Parliament adopted the latest version of the EU Directive on Copyright in the Digital Single Market. Before it comes into effect, this new EU law will need to be approved one last time by the EU member states—something that is very likely to happen. From there, individual countries will have two years to transpose it into their own national laws by adopting relevant legislation.
Critics have dubbed the directive a “censorship machine” that would harm free speech, impose new obligations on platforms that would be technically impossible for them to comply with, kill memes and GIFs, and ultimately “wreck the internet.” The provisions that have attracted the highest level of controversy are those containing a new right for press publishers (formerly Article 11, now Article 15 of the directive) and a set of obligations and liability for platforms giving access to user-uploaded content (such as YouTube) under what is now Article 17 of the directive (originally Article 13).
These concerns are of course serious and need to be carefully considered, because the internet and the way it works are crucial to how we get and share information, and how we participate in culture. But it appears unlikely that this new EU law will irreparably harm the internet and our free speech online. In fact, contrary to these allegations, it makes users’ legal position safer than what is currently the case. In fact, in some cases, the directive will protect users from the risk of legal liability for sharing protected content. They will also now have a right to share parodies, quotes, discussions, caricatures, etc.
The original version of the proposal, introduced in 2016, was dubbed a censorship machine because it appeared to require platforms to install upload filters that would prevent users from sharing protected content. That’s been changed somewhat. Now platforms will have to seek licenses from right holders. So, for instance, if YouTube wishes to allow users to post content that incorporates songs by Cardi B, it will need to make sure that they have received permission to do so from those that own the rights to her songs. This is something that might prove complex: YouTube itself has explained that tracking down each and every right holder is challenging at times, even for a global hit like “Despacito.” However, the law also allows platforms to host content even if they have been unable to secure a licence, insofar as they have made “best efforts” to obtain one. So, no, “Despacito” won’t disappear from YouTube.
Platforms will need to prevent unlicensed content from being uploaded, but the law also says they might be liable if they unduly limit users’ rights. So, for instance, if you make a parody of “Despacito,” YouTube cannot prevent you from uploading it. If it does, and you live in an EU country, then you will have the right to have it reinstated on the platform.
The law also removes the availability of platforms’ legal immunity—known as “safe harbor”—when users violate copyright. (The safe harbors will remain available in relation to other user activities, including defamation, criminal activities, trademark infringement, etc.) Case law in Europe had been already heading in that direction. In fact, the preamble to the directive states that Article 17 (formerly Article 13) is a clarification—rather than a change—of existing law.
In any case, the new obligations will not apply to younger and smaller players (companies operating for less three years, with a revenue of less than $11 million per year and fewer than 5 million unique visitors per month).
In all this, users might actually be better off than they are under the current system, for many reasons, but for two in particular.
First, if a platform secures a license in relation to certain content, users will cease being directly responsible for materials that they upload. The license will in fact cover both the platform and the user. This is a significant change. Currently, uploaders have the legal responsibility for what they publish. If you look at any platform’s terms of service (and if you actually read them), you’ll see that you take responsibility for the content you share and might be legally liable for it. With this new provision, in some cases, it will be the platform that will bear the responsibility for the content you share, not you (if you’re in an EU country, of course).
Second, users will have a right to upload parodies and caricatures, and to criticize, comment on, and quote others’ content. This is something that, under existing copyright laws, may or may not be allowed by individual European countries. For instance, until 2014 the United Kingdom had neither a copyright exception allowing parodies nor a copyright exception allowing quotations. Other countries, like Italy, have quotation exceptions, but courts have interpreted them quite restrictively. The new directive changes the law in the sense that all these activities will be rights, rather than exceptions to others’ rights.
All this means that users will have the right to post parodies and criticize and quote from others’ content, and that platforms cannot unduly prevent this. If they do—for instance, if they overblock—they might find themselves in a position in which they are financially liable toward users for infringing their rights. In this sense, the expression “censorship machine” seems hardly to capture the essence of what is now Article 17 of the directive: Users will have rights that they could enforce against platforms that would unduly “censor” their speech.
Platforms might thus find themselves as somewhat between a rock and a hard place: On the one hand, they would need to fulfil their legal obligations to right holders. On the other, they might become legally responsible to users of their services.
The task of complying with all different legal obligations might be daunting, both because the directive itself uses vague language in respect of topical concepts (for example, they’re required to make “best efforts” to conclude licensing agreements and prevent the availability of unlicensed content, but the phrase best efforts isn’t defined) and because setting a right balance between different and possibly conflicting rights will likely prove anything but straightforward.
As challenging at that might be, however, users appear to be in a stronger and safer position than they have ever been. Article 17 will be challenging for platforms to implement but hardly a censorship machine. Will it wreck the internet? Probably not. As the internet has proved time and ago, it’s a pretty hardy creature.