Google, Facebook, and other tech giants could have the last laugh when the controversial European copyright directive comes up for a final vote on March 25. The companies have been vocal opponents of this update to intellectual property law, but one aspect of the law may end up actually consolidating their power.
The joke will most likely be on content creators, the very people the new laws are meant to protect, while also leaving internet users with less to laugh about, literally.
Content creators who oppose the new rule say that it could end up censoring their work instead of protecting copyrighted material as intended.
At issue is a portion of the proposed directive called Article 13, which requires internet platforms to police content for copyright violations before it goes up, rather than responding to violation complaints on a case-by-case basis, as they do now. In order to contend with the massive amounts of content being uploaded every moment to sites like YouTube, for example, the platforms will need to install “upload filters” which will analyze works and reject copyright violators. But the automated filters aren’t exactly discerning, and they won’t be able to consider all the nuances of intellectual property law, which does allow copyrighted materials to be used for parody, news, and when a work is transformative, for example.
An upload filter won’t necessarily be able to distinguish between a meme, say, that relies on a copyrighted image for humorous purposes, and infringement. That means content based on copyrighted materials, but fairly used, will end up censored, according to the legislation’s opponents, who have dubbed Article 13 the “meme ban.”
This legislation will harm independent and commercial creators, as well as the cultures in which they operate, says digital rights activist Hannah Machlin, who is working with Create Refresh, a group of artists and about 40 organizations, including Creative Commons and Wikimedia France, to oppose Article 13. Machlin argues that the filters will end up censoring political satire—and free speech, as a result. Parodying political events and figures is critical to maintaining debate in a lively democracy, she contends, but the upload filters won’t recognize the content.
Beyond parody, the upload filters will restrict the circulation of all kinds of art, she argues. “The filters won’t know when nudity is artistic as opposed to pornographic,” Machlin tells Quartz. And creators of many forms which rely on sampling will suffer, like DJs. On a deeper level, the legislation will have a chilling effect on art in general, as all creative work is highly referential, argues street artist Jack El Diablo on the Create Refresh website. Restrictions on use, monitored by machines, will end up stunting creativity, rather than protecting the rights of content producers, he and others believe.
Handing over the web
Paradoxically, the new law will likely also end up consolidating the power that major tech companies already have on the internet, rather than just making them more responsible netizens as initially intended. Giants like Google, which will have to create a filtering algorithm, will end up selling their filtering services to smaller platforms that can’t afford to develop their own. And that means big companies will end up being the European internet’s de facto intellectual property police and will have access to even more data than ever before. Machlin and others are worried about handing over all this power to major corporations.
Any site that hosts user-generated content will need a filter if it’s been online for three years, generates more than €10 million annually (about $11.33 million), and has more than 5 million unique monthly visitors. Although Article 13 doesn’t explicitly mandate automated upload filters, this is the only feasible way to handle the mass of content going online all the time. So, the practical result will be automated culling of creative content done according to algorithms which are designed by tech giants with their considerable means.
Smaller platforms will use the filters created by large IT companies for this purpose, just as they already use analytics tools by Facebook, Amazon and Google, according to Ulrich Kelber, Germany’s Federal Commissioner for Data Protection and Freedom of Information. Article 13 will thus consolidate big tech’s hold on the internet and presents a huge data privacy risk, he says. In a Feb. 26 statement about the copyright directive, officially translated into English for the Foss Patents blog, Kelber warns:
At the end of the day, this would result in an oligopoly consisting of a few vendors of filtering technologies, which would then be instrumental to more or less the entire Internet data traffic of relevant platforms and services. The wealth of information those vendors would receive about all users in the process is evidenced by, among other examples, current media coverage of data transfers by eHealth apps to Facebook. Therefore, the Federal Commissioner for Data Protection and Freedom of Information sees a clear and present danger of a further concentration of data in the hands of an oligopoly of vendors as an adverse effect of the present EU proposal.
In September, The Verge wrote about the new EU copyright directive, stating, “Exactly how the legislation will be interpreted will be up to individual nations, but the shift in the balance of power is clear: the web’s biggest tech companies are losing their grip on the internet.” The law hasn’t even been finally voted upon, and it will take two more years for individual nations to integrate the EU legislation into their own legal frameworks, but already that initial perception seems both naive and dated.
Based on Kelber’s concerns, it now seems much more likely that the copyright directive will only tighten big tech’s hold and that upload filters could end up trapping small platforms, creators, and internet users in the wide net being cast in the name of creativity.