EVERY FEW years, a development in the regulatory world prompts doomsayers to declare the Internet’s imminent death. The European Union’s Copyright Directive, initially approved in mid-September, is the latest would-be killer. The forecast is always wrong — and this directive, designed to create modern copyright rules for Europe, is needed. But critics are right that two controversial provisions in particular could cause harm.
The first of these provisions, Article 11, grants publishers the right to request payment from online platforms that share their stories. The aim is to protect newspapers from companies coopting their audiences; requiring sites to limit the amount of an article’s content they and their users display might be reasonable. But it is very different from requiring them to allow nothing more than “individual words” or stand-alone hyperlinks, which are less enticing to consumers who want to know what they are clicking on. A European Commission study found that newspapers actually benefit from exposure on news aggregators. That means publications could suffer if platforms decide it’s not worth negotiating with them. Smaller ones are more likely to lose out.
Article 11 could also entrench industry incumbents: Though the Copyright Directive exempts “small and micro” companies, midsize platforms with a better chance of competing with tech giants will find their growth limited if they cannot afford fees.
The second provision, Article 13, attempts to redirect money from platforms that display advertisements alongside content they do not own to the artists who created that content. Platforms would be responsible for users’ copyright infringement unless they proactively prevent offending uploads. But that degree of monitoring is a task experts say only automated filters could handle. One big problem with this vision: Those filters are flawed and exploitable.
YouTube’s screening system has been criticized for under-removing infringements and over-removing innocent content: say, a recording of an academic conference because a DJ played music during a lunch break. Filters are not advanced enough to detect and protect this sort of fair dealing, and the directive makes no attempt to account for the flaw. Because companies would err on the side of removal, copyright trolls and corporations could have an easier time taking advantage by laying false ownership claims, either to make money or silence critics.
Article 13 might also make tech titans more titanic still. Imperfect as content screening systems are, incumbent companies can at least afford to build them, along with appeals processes to step in where the algorithms inevitably fail. Midsize companies trying to challenge industry leaders, once again, may have more trouble.
The E.U. directive is unlikely to lose when it comes up for a final vote in early 2019, but discussions in the meantime could lead to mitigating tweaks. The fight so far could also instruct U.S. lawmakers considering updates to their regulatory scheme not to make the same mistakes as their cohorts across the Atlantic.