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Without a doubt, one of the most controversial parts of the European Commission’s copyright reform package, article 13 and the accompanying recitals 38, 39 caused much ink to flow. At the centre of this controversy lies a new obligation for ‘online content sharing services providers’[1] to introduce ‘appropriate and proportionate technological measures’[2] and to increase transparency towards right-holders. However, such obligation is likely to have an impact on cultural diversity in the EU.
The driver for this new obligation (as identified in the Commission’s Impact Assessment) appears to be the following: right-holders have no or limited control over the use and the remuneration for the use of copyright-protected content online (i.e. licensing practices have not adapted to the online environment well, especially, in relation to streaming services). This problem is also known as the ‘value gap’ to refer to the difference of revenue generated between subscription-based and ad-funded business models. In other words, there is a presumption that online platforms are unfairly appropriating value generated by the use of copyright-protected works, requiring legislative intervention. However, it begs the question as to how upload filters will enable a fair distribution of values between stakeholders as well as the compliance of this obligation with the human rights’ framework.
So what is the state of affairs since the publication of the Commission’s proposed new copyright directive in September 2016? Whilst MEP Comodini Cachia acknowledged the difficulties to reconcile article 13 with fundamental rights and the safe harbour provisions of the E-Commerce Directive, the latest compromise document disseminated by MEP Voss mostly reverts to the Commission’s proposal (Table 1).[3] According to this document, not only has the targeted platforms expanded but the express reference to ‘technical measures’ is made (11 times in article 13 only!).[4] In addition to requiring all platforms to secure a license for the content shared, the proposal requires these platforms sharing ‘significant amounts’ of user-generated content (‘UGC’) to prevent the upload of copyright-protected content. Here, it is reasonable to assume that this would be done through the introduction of complex algorithms, which will make decisions as to which expressions can be made and which ones to block. As suggested by MEP Comodini Cachia, ‘large amounts’ has been replaced by ’significant’ but the language used remains vague as there is no indication as to how this threshold should be interpreted, creating not only legal uncertainty but also, concerns as to its efficiency. Here, there is a real risk of the algorithm being overinclusive or underinclusive. For example, by blocking lawful content or by ignoring unlawful content.
The type of monitoring is equally unclear. Whilst the Court of Justice of the European Union (CJEU) repeatedly noted the incompatibility of general monitoring with fundamental rights, and especially, articles 8, 11 & 16 of the EU Charter of Fundamental Rights (see C-70/10 Scarlet v Sabam, confirmed in C-360/10 Sabam v Netlog), the new proposal does not consider that these upload filters amount to ‘general’ monitoring. This is troubling as it is hard to understand how an obligation which leads to automatic platform liability in presence of unlicensed copyright-protected content - irrelevantly from the use of technical measures - is not tantamount to general monitoring (paras 35, 36, 40, 60, Scarlet v Sabam; para 38 Sabam v Netlog; article 15 E-Commerce Dir 2000/31/EC).
Furthermore, the latest document envisages copyright exceptions and limitations to be preserved by ensuring that ‘users have access to a court or other relevant judicial authority to assert the use of an exception or limitation to copyright rules’.[5] Procedurally acting as a defence, it is hard to understand how a user will be able to ‘assert’ the application of a copyright exception. Despite numerous calls for reforms, exceptions are not rights and, therefore, users cannot initiate legal actions. This leads to a problematic situation where the careful balance struck between exclusive rights enabling the control of certain uses made of copyright-protected works and permitted unauthorised uses tilts heavily in favour of right-holders. These exceptions, which allow the preservation and promotion of freedom of expression and cultural diversity, are therefore likely to be annihilated in the future.
In this context, it seems appropriate to raise the question as to how such initiatives are likely to contribute to a goal of preserving and promoting cultural diversity. Having determined a way to quantify musical cultural diversity online (by a combination of the Herfindahl Index and the Numbers-Equivalent), our research team looked at how automated anti-piracy systems impacts on female’s expressions online. The assumption is that algorithms should not in theory block more female expressions than male’s expressions. The preliminary results are interesting as not only are female expressions under-represented on online sharing platform in general but their content is more likely to be blocked. Without independent enforcement mechanisms, there is a risk that these occurrences increase in the future. Therefore, if we believe that audio-visual content can help shaping culture by enabling the public to access more diverse works in an unprecedented manner, as well as facilitating individuals to express themselves in a digital environment, then the enforcement of copyright online must not contribute to misappropriation of content and revenue but should strive to introduce fair and efficient independent enforcement mechanisms. Without such a support, the agglomeration of culture is likely to be magnified by the ever-increasing reliance on automated-anti piracy systems on online sharing platforms.
This blog is based on an empirical research project funded by CREATe and financial support from CREATe is gratefully acknowledged. The research project led to two publications:
Sabine Jacques, Krzysztof Garstka, Morten Hviid, John Street, ‘Automated Anti-Piracy Systems as Copyright Enforcement Mechanism: A Need to Consider Cultural Diversity’ (2018) 40(4) EIPR 218-229;
Sabine Jacques, Krzysztof Garstka, Morten Hviid, John Street, ‘An empirical study on the use of automated anti-piracy systems and the consequences for cultural diversity’ (2018) SCRIPTed Forthcoming.
[1] Wording from the latest compromise document by the EU Parliament (14th March 2018), available here.
[2] Ibid.
[3] Ibid.
[4] Though apparently, explicit reference to ‘technological measures’ was a ‘mistake’.
[5] Author’s emphasis. Ibid, new art 13(2).