Will the EU Finally Hold Internet Giants Accountable?

On July 5th, the European Parliament will vote on a draft of the Copyright Directive for the Digital Single Market that has major implications for the future of copyright law in the European Union and beyond. At the center of the debate is Article 13, a provision that would require online platforms that feature user-generated content to screen uploads for infringing material. It’s a measure that represents a significant update to standards of accountability in the digital age, and it’s one that’s now necessary to combat the continual devaluation of creative works and to ensure the survival of essential creative ecosystems.

In the weeks and months leading up to the vote, advocates for Article 13’s defeat have become increasingly vocal in their opposition to the proposal. An overwhelming amount of those attacking Article 13 have resorted to fear-mongering and misinformed hyperbole. Detractors’ claims include everything from the ridiculous—insisting Article 13 will outlaw memes—to the clichéd—that efforts to impose platform accountability amount to censorship and will “break the internet.”

Fixing Outdated Safe Harbors and the YouTube Value Gap

Chief among opponents’ complaints is that Article 13 would destroy the safe harbors that guarantee platforms will not be liable for infringing content uploaded without their knowledge. At the turn of the century, the Digital Millennium Copyright Act in the US and E-commerce Directive in Europe included safe harbor immunities as a way to encourage the development of the internet and the companies that were leading the way in online innovation. But these protections were never meant to be sweeping get-out-of-jail-free cards that encourage platforms to ignore infringing activity.

What’s become clear is that the immunities granted to tech giants through safe harbors haven’t properly incentivized them to stop profiting from illegal activity. These once-nurtured companies are now the most powerful and wealthy entities in the world, and business models based on the unauthorized distribution of protected works must be challenged.

Making matters worse is the fact that mechanisms meant to give creators and copyright owners a way to fight infringement have fallen short. Notice and takedown is an ineffective weapon against the incessant uploading of unauthorized content, and safe harbors allow online intermediaries to repeatedly turn a blind eye to—and profit from—massive amounts of copyright infringement occurring on their platforms.

The failure of procedures like notice and takedown are nowhere more apparent than on YouTube, where the futility of artists’ efforts to fight infringement has led to an inability to be fairly compensated for the exploitation of their works. When YouTube rose to prominence as the most popular streaming platform in the world—offering up free illegal streams of thousands of popular songs and movies—copyright owners quickly realized the law left them powerless to hold YouTube accountable for being a clearinghouse of stolen creative works.

This lack of control for creators combined with YouTube’s market dominance has created a “value gap” which leaves artists in a lose-lose predicament where they must choose between the meager compensation YouTube offers and nothing at all. Furthermore, legitimate streaming platforms are forced to compete with YouTube’s enormous and popular black market. Sadly, efforts similar to  the current campaign against the EU Copyright Directive have enabled this market dysfunction to persist for over a decade.

A Campaign of Misinformation

Despite the Copyright Directive’s effort to clarify safe harbor qualifications and correct a glaring inequality, opponents of Article 13 insist content filtering provisions will result in censorship and destroy the internet as we know it. It’s a campaign that is recycling the same scare tactics and wild assumptions that seem to arise whenever there is an attempt to inject accountability in cyberspace.

A recent article by a leading European IP law expert takes many of these accusations to task, pointing to language in Article 13 that ensures a balancing of rights and interests through the introduction of exceptions and limitations by Member States “irrespective of whether the value gap proposal is adopted or not.” Article 13 clarifies that systems to prevent misuse or undue limitations to the exercise of exceptions must be adopted by Member States to ensure fundamental rights and freedom of expression are not compromised. The inclusion of carve outs and provisions that empower Member States to prohibit any behavior approaching censorship renders these doomsday “end of the internet” allegations baseless.

Additionally, the article explains that the current legal framework developed by the Court of Justice of the European Union (CJEU) has already been moving towards addressing the value gap, and Article 13 “would not represent a dramatic shift from the way in which the law has developed up till now.” The article points out that safe harbor protections under Article 14 of the E-Commerce Directive are only available to passive service providers who act as true intermediaries, and that hosting services who make unauthorized communications to the pubic are already precluded from safe harbor immunity.

So why would organizations who support tech giants spread misinformation and falsehoods about the contents of Article 13 and its repercussions? Unfortunately, it’s a strategy they’ve employed again and again whenever there is an initiative to implement responsibility and accountability online. By taking a reasonable bill or legislative effort and painting it as an attack on fundamental rights and freedom of expression, they have been able to drum up hysteria and knee-jerk reactions from those who may not fully understand the issues. It’s a formula that has worked to defeat sensible reform in the past, but it must be called out for what it is.

Accountability and Respect for Creation

Artists and representatives of the creative industries have weighed in on the proposals, explaining that content filtering isn’t just about protecting their livelihoods, but ensuring that the next generation of creators can flourish in a system that values and respects their contributions. A recent article criticizing Article 13 complained that there is no incentive for the public to welcome the implementation of content filtering. But this argument misses the point. Increasing accountability for internet giants who profit from infringement is an opportunity for the public to show that it values creative works, artists, and those responsible for bringing creative content to consumers.

It’s also an opportunity for the public to hold accountable companies and organizations that routinely behave as if they are above the law. When it comes to issues of increased accountability for their actions, internet giants have been able to trick the public in the past with misinformation campaigns similar to the one being waged against the Copyright Directive, but there is a growing tide of frustration with these deceptive practices, and the public should wake up and demand change.

As the European Parliament goes to vote on the Copyright Directive, it’s essential that parliament members, stakeholders, and the public understand what’s at stake. Recent events around the world have challenged notions of what is expected from the tech giants that have become the gatekeepers of the digital age, and it’s past time that they face responsibility for enabling and profiting from the theft of creative works. The future of creativity depends on it.