Note: This post was updated in Sept 2018 to add news on recent developments in which the Copyright Directive was passed in the European Parliament.
It's not often that potential changes to copyright law spark a passionate response. However, that's exactly what's happened as the European Union has taken up reform in recent months.
The proposed updates to regulations — which just faced their first test in front of the European Parliament on July 5th — have caused a Wikipedia blackout, been hailed as a "once-in-a-generation" opportunity for content creators, and are decried as potentially "Internet wrecking" by detractors.
What's the fuss all about? How could the modifications impact online publishers? What are the implications of the recent vote by lawmakers?
Here's what you need to know:
- What Are the Proposed Changes to the Copyright Law?
The EU is looking to update its copyright framework, which was established in 2001. Broadly, legislators want to reform the law so that it properly takes into account the changes wrought by the Internet.
While there are a host of proposed adjustments, including important revisions to how data can be mined, most of the debate centers around two specific provisions: Article 11 and Article 13.
Article 11 — sometimes called the "link tax" — is intended to prevent companies such as Google and Facebook from using protected content without permission. The idea is that publishers should receive some sort of payment from distribution platforms for what they create, even if only relatively small parts are presented.
Article 13 seeks to create better protections for copyright holders by making firms more responsible for violations. Essentially platforms would have to find ways to preemptively stop protected materials from being uploaded by users, rather than the current approach where they are viewed as neutral hosts and infringements are handled retroactively.
- Who would benefit from the proposed EU Copyright changes? How does it impact digital publishers?
For online publishers there is a lot to like in what Europe is trying to do.
Your analytics tool may show that a significant share of your traffic comes through aggregation platforms such as Facebook, Google, Twitter etc. each of which carry snippets or sometimes even your entire stories on their platform without you deriving any direct revenue out of it.
Broadly the EU's moves seek to shift the power from content aggregators to content creators (hence the strong support from many musicians). These changes could give effective tools to create new revenue streams for publishers who currently feel powerless as they watch their copyrighted materials get distributed online without permission or compensation.
In theory, Article 11 would finally a address a longtime complaint of publishers: that platforms such as Facebook get to distribute useful snippets of content to audiences without having to pay, today.
Similarly, Article 13 would tackle a major struggle for creators: no longer would distribution sites be able to shirk responsibility for copyright violations; they would finally be held responsible for the actions that people take on their platforms.
The proposed changes would allow digital publishers, news media companies and all forms of content creators to assert their rights over the content produced by them and restore some power to the content producers.
- What Are the Potential Downfalls?
Not surprisingly, the Internet giants that benefit from the current system are not fans of the copyright changes and have opposed them vigorously: It's been reported that Google alone has already spent more than $36 million lobbying.
However, a wide-range of other parties — from large non-profit informational sites to individual social media users — have vocally objected as well.
One major criticism of Article 11 and Article 13 is that they would introduce ambiguity and stifle creativity across the Internet. For example, could a little hyperlink to a news article count as a copyrighted snippet and therefore be subject to claims/charges? Would sharing a meme based on a popular TV show be infringement?
Another issue is compliance and enforcement. By making online platforms check every user upload for copyright violations, Article 13 places a huge burden on sites that allow people to share content. This could inadvertently boost large companies with sophisticated recognition technology — such as Google — over those with fewer resources.
Also, Article 11 as currently envisioned allows individual nations to make adjustments, which could be a nightmare for firms trying to stay on the right side of the law.
The EU's legislators have been trying to clarify and tweak the law — for example by adding an exemption for citation-heavy resource sites like Wikipedia — but much uncertainty remains about both the short-term and long-term impact if the changes go through.
- Where Do Things Stand Now? Is This Going to Become Law?
So, will these changes be implemented?
Right now, the implementation schedule for these changes is unclear.
Earlier this month, the regulations — referred to somewhat ominously as the Copyright Directive — cleared parliamentary committees. However, they failed by a margin of 318-278 in the European Parliament on July 5th. This was portrayed by many as a rejection, but in truth it was more of a delay: essentially lawmakers chose not to fast-track the legislation and instead decided to revisit the issue in September.
What comes next is a bit of a mystery. One on had it's possible that a watered-down version of the Content Directive with Articles 11 and 13 greatly revised — or even completely eliminated — will be what passes. On the other hard, the changes could find fresh support and ultimately triumph as they are.
UPDATE: On 12 Sept 2018, the European Parliament passed the Copyright Directive with amended versions of Articles 11 and 13 that are still labeled draconian by critics. The law is not expected to come into effect until spring 2019, as each European nation's parliament will now need to vote on it, but it does appear to be primed to take effect next year.
Either way, pay close attention in the coming months, since the outcome will have huge implications for online publishers and content creators not just in Europe, but around the world.
More reading: What is GDPR & how does it impact digital publishers?