Why Proposed EU Copyright Law May Cause Chaos

NEWS ANALYSIS: New legislation controlling European copyrights places requirements on internet services that may add significant complexity in how information is presented everywhere.

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The EU’s new copyright law, which has been in the works since 2013, has passed a crucial committee vote, and is set to be voted on in the European Parliament in July. If passed, the new law would place significant limitations on how material is presented and used on the internet. In addition, the law places requirements on websites and search engines that could severely hamper the use of information.

The primary issue is in Article 13 of the proposed legislation. That article requires websites to implement technology that recognizes when material infringes on a copyright and then prevent its use. The legislation also requires all sites to prevent the posting of copyrighted material for which they don’t have permission to use or have not obtained a license.

The idea behind this legislation is well intended. The EU is trying to find a way for content creators to get paid for their work fairly and equitably. It’s intended to limit the theft of content or unauthorized reuse and to require that when such material is used that the creator gets paid.

The legislation is also intended to ensure that publishers get compensated for the use of the material they publish, so that a website can’t just publish a news story and not pay for the use of that story. This appears to be aimed squarely at Facebook and its news feeds, although nothing in the legislation actually says that.

Link Tax Also in the Mix?

There’s also language in legislation that would appear to bring back a link tax, meaning that even displaying a brief summary or a headline on a search engine would result in a requirement to pay the publisher for the use of that material. Such a link tax had been tried in a few European countries a few years ago, and it failed because finding a way to pay for such links proved unworkable.

The problem with the proposed legislation isn’t with the intent but rather with the way the EU expects it to be implemented. “Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers,” the legislation says.

Note the use of the word “prevent,” which is followed in the same paragraph with a requirement to use “content recognition technologies.”

What this means is that websites are required to implement filters that check for material that might be violating a copyright. If it finds it, then it should prevent it from being viewed.

Is This Built Around YouTube's Copyright Filtering Process?

Such content filtering already exists in YouTube’s ContentID system. This has resulted in some very strange results, such as the blocking of a NASA video feed from its Mars Lander, as related by the Electronic Frontier Foundation. In that case, apparently the Scripps news service had also used some NASA video and used that as a reason to block the original. While the Mars video was eventually restored, it illustrates the chaos that can impact legitimate uses of material by more than one source.

What the EU law appears to do is apply the practices in YouTube’s ContentID system to everything on the internet. This would prevent internet memes of course, but it would also prevent anything from going viral.

More important to your organization is that you’d have to devote a significant amount of time and resources to making sure the material you want to be available on search engines such as Google or Bing, or to be useful on Facebook or Twitter actually continues to be available. Suppose, for example, that you post a short video about your new product on your website and post it to YouTube, and then the copyright filtering decides that it violates someone’s copyright.

That product video that you paid for would be unavailable on YouTube and search engines wouldn’t show it on your website. It would, for all practical purposes, be invisible. Yes, people could still see the video if they knew to visit your website and look, but they’d have no way to know that.

Legislation Will Take Effect in 2019 If Passed in July

What’s worse, there’s no means of fast resolution in the existing legislation, so while your video could eventually appear, it would lose its immediacy. And if your competitor claimed it violated their copyright, it might never be seen.

Fortunately, the legislation won’t take effect until Jan. 1, 2019 if it’s passed by the EU Parliament in July, so you have time to plan the new rules. And while it’s only aimed at protecting European citizens, you can assume that the changes demanded by the EU will affect search and content sites globally, since they don’t want to run afoul of the new rules.

But the bottom line is that you’re going to have to devote resources to making sure your material is visible when you post it, and more resources to make sure it stays visible. You never can tell when it might be pulled by an over-eager filter.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...