[Ed Note: The following post is part of the TLF Editorial Board Test 2019-20. It has been authored by Manasvin Andra, a third year student of NALSAR University of Law.]
Controlling the public’s access to the Internet has always been considered the tool of the demagogue. We take it as being par for the course when restrictions are imposed on users in countries such as China and Myanmar, but a ban imposed by Facebook even on members of the far-right sees intense debate erupt over the perceived violation of the recipient’s freedom of speech.
This respect for one’s right to speak his/her mind freely owes a lot to the foundational place that is accorded to the right of free speech and expression by influential charters like the Universal Declaration of Human Rights, and it is clear to see that these freedoms have been extended with equal verve and vigour to apply to relatively new forms of media such as the Internet.
Placed against this background, the adoption by the European Union of the Directive on Copyright in the Digital Single Market is unusual, troubling and even sinister, as the law poses a grave threat to citizens’ right to privacy and freedom of speech and expression, even as it professes its benevolent intentions.
But what exactly does the new Directive entail, and how will free speech be impacted now that it has been adopted? Can the law pass muster if challenged in the Court of Justice for the European Union? What is the prevailing position of law on the issue?
It is these issues that the present post shall attempt to discuss.
I. The EU Directive on Copyright – What is it and how does it work?
The deliberations for a new EU-wide copyright law were opened due to the ineffectiveness of the previous Directive, which was implemented in 2001 and whose provisions were found unsuitable for today’s digital market. While the Directive succeeded in achieving some of its goals its major failure was its complete ineffectiveness on the issue of fair remuneration to content creators, which has contributed significantly to the “value gap” (i.e. difference in revenues) that currently exists between internet companies and content creators.
The newly implemented Directive aims to address this discrepancy through Article 17 (Draft Article 13), which imposes an obligation on intermediary platforms to obtain licenses for the content uploaded by users.
This means that for every video that is uploaded to its platform, YouTube must obtain a license from the uploader, failing which it must ensure the “non-availability” of the relevant video. Essentially, it means that the company loses the right to display content if it fails to acquire a license, and it must therefore ensure that the video is no longer available for public viewing.
The obligation imposed on intermediaries to negotiate licenses with users presents some very obvious difficulties, the most pertinent of which is the immense financial liability that companies will inevitably have to bear.
This is because in order to comply with the law online platforms will have to pre-emptively acquire a license from every single creator for the billions of copyrighted works that are created every day, an impossible task considering that a copyright arises automatically when a new work is created.
All of this ultimately means that in order to escape liability internet platforms will have to install automated filters, which will lead to a handful of companies monitoring content that is uploaded by a vast majority of Internet users across the world.
II. What does the Directive mean for the free use of the Internet?
The current model for dealing with copyright infringements is the notice-and-takedown process, through which intermediary platforms can escape liability when their users infringe copyright so long as they are unaware of the infringement, provided that they also act quickly to remove it once knowledge of the copyrighted content reaches them. However, the new model changes this paradigm by instituting a system where filtering is done before the content is uploaded, rather than in case a violation is reported.
The problem with this kind of filtering structure is that it renders any exceptions to the law completely useless, as even sophisticated algorithms lack the ability to correctly distinguish genuine videos, parodies and memes from actual copyright infringements. The filters would operate in such a manner as to automatically block any work that contains unlicensed copyrighted material, leaving users with no choice but to complain to the intermediaries in order to gain the benefit of the exceptions.
It is this aspect of the Directive that has led to Article 17 being branded a ‘meme ban’, as despite the EU carving out an exception for “quotation, criticism, review, caricature, parody and pastiche”, the use of filters means that there is no way to correctly distinguish whether a given upload is parody or outright infringement.
Furthermore, developing the kind of filters required by the Directive is an extremely expensive process, with only a few companies possessing the resources needed to develop their own filtering software.
This means that while major tech companies will carry on unharmed it will be the small and medium companies that will bear the brunt of the new law, as the compulsion to adopt technologies created by other companies will lead to control of the Internet vesting in the hands of multinational entities such as Google and Facebook.
As Pirate Party MEP and prominent critic of the Copyright Directive Julia Reda puts it, “it is naive to think that this censorship infrastructure will not be used for purposes other than fighting copyright infringement”, which demonstrates the dangers of the amount of control that the law purports to hand over to private MNCs.
Both of the above measures can somewhat be justified if the Directive effectively addressed the prevailing “value gap”, but there is little to no indication that such a move will actually work.
The reason is simple: the immense liability that intermediary platforms face under the new law mean that they will adopt large-scale filtering rather than risk incurring penalties by attempting to negotiate licenses with content creators, which will lead to only large artistes with deep pockets – and not the small creators whom the Directive purports to help – benefiting from the change in status quo.
III. What does current case law mean for the legality of the Directive?
Given the controversy surrounding the Directive it was perhaps inevitable that its legality would eventually be called into question, and so it proved as Poland became the first member state to file a case against the law in the CJEU.
However, this leads us to a question – what is the position of existing case law on the issues that have dominated the discourse surrounding the Directive, namely, filtering and general monitoring of the Internet?
As it turns out, these questions are not new for the EU’s top Court, as it dealt with a very similar matter in the 2012 SABAM/Netlog case. There, SABAM sought a decree against Netlog which would force the company to install a filtering system to scan for potential copyright infringements, on the grounds that users were using SABAM’s copyrighted content in uploading their works.
If this sounds familiar it is because such a measure is exactly what the new Directive contemplates, but crucially, the CJEU in the case held that such a filtering system could not be deemed permissible.
The Court arrived at this decision by finding that such a large-scale filtering infrastructure would violate users’ fundamental right to the security of their personal data as provided by Article 8 of the Charter, as well as their freedom to receive or impart information as given in Article 11.
According to the Court, such a requirement would not amount to striking a fair balance between SABAM’s right to intellectual property and Netlog (and its users’) freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, and it therefore refused to grant the injunction.
The ramifications of this ruling are clear – filtering/general monitoring of infringements has been held to violate users’ right to privacy and freedom of information, and therefore Article 17 of the Copyright Directive stands contrary to the existing case law on the issue of filtering.
Article 17 has clear and adverse consequences for content creators and ordinary users – but existing case law offers opponents a glimmer of hope that the provision will be scrapped before it can be implemented fully.
The blatant violation of users’ right to privacy and the prospect of a few companies controlling the entirety of the Internet has understandably resulted in many fearing the loss of freedom that is so unique to the Internet, and it is clear that content creators will be casualties rather than beneficiaries if Article 17 is allowed to remain on the books.
The need of the hour is to find better and more effective ways of ensuring that creators are compensated fairly for their content, but colonising the Internet, as the European Union has purported to do with its new law, can never be accepted as a solution.