Two weeks ahead of the second trilogue meeting on the 26th of November where the most controversial parts of the Copyright Directive will be discussed for the first time, various stakeholders are starting to position themselves for the final stages of the reform process. Yesterday Politico.eu leaked the compromise suggestions prepared by the Austrian Presidency for articles 11 and 13. Unsurprisingly the suggested texts maintain the general approach that was cemented by both the Council and the Parliament over the summer (see analysis by MEP Felix Reda here). By now it is clear that regardless of how much we argue that Article 13 should be deleted and that Article 11 should be limited to a presumption of representations neither of these two things will happen.
Limiting the damage by clearly identifying the services targeted
Under these conditions it seems that the most promising approach to minimize the harm that will be caused by these articles will be to limit what type of services they apply to.
Article 11 should be modified in such a way that it only applies to search engines and news aggregators. These are the type of services that press publishers are claiming to cause them harm (which we continue to doubt). This would prevent a lot of legal uncertainty (and thus damage) for everyone else on the internet.
The same approach makes sense for article 13. The music industry and other rightsholders have consistently argued that they are harmed by large online platforms that allow users to share audiovisual (AV) works. Given that the stated objective of the proponents of article 13 is to create a better bargaining position for rightsholders vis a vis YouTube, Facebook, Google and other commercial platforms, it seems reasonable to limit the types of services that would need to comply with article 13 to for-profit audio visual platforms that compete with licensed services only. Such a measure would prevent a lot of legal uncertainty for platforms that do not deal with AV works or do not operate on a for profit basis.
Both the European Parliament and the Council have made baby steps in this direction by including a (growing) list of exceptions to the definition of Online Content Sharing Service Providers (OCSSPs are the services that would need to comply with Article 13). As we have argued before this approach is deeply flawed and should be replaced by a positive definition of the type of services covered. If the EU lawmaker intends to introduce a measure that targets the dominant commercial content sharing platforms then it should have the honesty to state this outright.
Article 13 as a competitive advantage for YouTube et al?
In its current form article 13 looks anything but a measure that would reign in the power of the big commercial platforms. We have been arguing for awhile that imposing complex filtering obligations and increased liability on all online platforms will create a competitive advantage for the market leaders, as they are the ones who can easily absorb the costs related to compliance with new rules. On the other hand, it is likely that smaller competitors will struggle with compliance.
That this is not only a theoretical possibility is clearly illustrated by a Financial Times OpEd that YouTube CEO Susan Wojcicki published on Monday. In her piece Wojcicki – who has become increasingly vocal about article 13 after the summer – highlights the size of YouTube’s royalty payments to rightsholders and complains about the costs that complying with article 13 would cause for YouTube. Woven through this narrative she promotes Content ID (YouTube’s own filtering technology) as “the best solution for managing rights on a global scale”.
Not surprisingly she then suggests that EU policy makers should change article 13 so that it would be based on “smart rights management technology, similar to Content ID” and that “Platforms that follow these rules, […] shouldn’t be held directly liable for every single piece of content that a user uploads.”
In other words YouTube hopes that article 13 will be modified so that YouTube would only need to make minimal efforts to comply while its competitors (and countless services that are operating in completely unrelated areas) would need to invest in costly technology to play catch up with YouTube. This possibility has been present in article 13 although policy makers so far chosen to ignore it. Hopefully the fact that YouTube now clearly telegraphs its intentions will serve as a wake up call for policy makers.
If the EU legislator wants to avoid passing regulation that will further strengthen the position of the currently dominant set of platforms then they should limit the obligations introduced by Article 13 to target these platforms only. As we have pointed out above, the best way to achieve this is to include a targeted definition of the services that need to comply into the text.
Obviously this intervention would not solve all the problematic aspects of article 13. Even with a more targeted version of article 13 the legislator needs to ensure that the fundamental rights of users are protected. Enforcement of copyright must not become a pre-emptive, arbitrary and privately-enforced censorship of legal content.
It is up to all parties involved to ensure that article 13 does not end up benefiting a small number of already dominant platforms. In this case it would not only hurt internet uses and creators but also those who have unleashed this legislative monstrosity.