The copyright directive that the European Parliament adopted in March (“the Directive”) won final approval from the European Council last month. Member states have two years to integrate its requirements into their own national law.
The amendments—especially Article 17—stand in sharp contrast to U.S. internet governance laws and the EU’s existing copyright directive. Article 17, for example, would impose liability on sites that host copyright-infringing user-generated material, mandating that the sites proactively remove said content. This differs from both the U.S. system of “notice and takedown” and the EU’s existing copyright directive in that the new directive shifts the burden of policing web-based copyright infringement from copyright owners to host sites.
Under the existing directive, web hosts are shielded from lawsuits over infringing user-generated content if they quickly attempt to take down the material after being notified. Similarly, in the U.S., the passage of the Digital Millennium Copyright Act (“DMCA”) in 1998 established “safe harbors” for websites that host user-generated content, protecting sites from lawsuits if they promptly remove copyright-infringing content after receiving notice from rightsholders regarding the sites’ specific violations. According to Morrison & Foerster attorney J. Alexander Lawrence, there is “generally no obligation for websites to police what users put up in the first instance,” placing the onus on the copyright owner to do the policing. The U.S. system was established on the premise that imposing traditional methods of indirect copyright liability on sites like YouTube or Facebook, which allow billions of users to freely post material, would lead to either “draconian self-censorship” or “crippling legal damages.” It is no surprise, then, that the Internet Association, which represents Google, Facebook, and other internet giants, champions the safe harbor, deeming it “instrumental and indispensable” in the rise of the interactive web.
Article 17, on the other hand, would require web companies to make their “best efforts” to “avoid the availability” of copyrighted works that rightsholders have identified, such that sites would have to implement new, proactive measures to prevent user-generated infringement. In this way, notes Latham & Watkins partner Sy Damle, the Directive puts the initial burden of preventing and policing copyright infringement on internet platforms, as opposed to treating those platforms like innocent middlemen as the DMCA generally does. Critics of the Directive, which include American tech giants and free speech advocates alike, claim that the new laws will compel web companies to establish automated content filtering or blocking mechanisms.
Some copyright experts believe that the Directive will spark similar change in the U.S.—a move that the country’s biggest copyright owners, who fiercely oppose the DMCA’s safe harbor and notice-and-takedown provisions, would likely embrace. Film studios and record companies have been advocating for some sort of change to the current system for years, asserting that the “outdated” DMCA provisions place too large—and too costly—a burden on rightsholders in requiring them to submit a separate notice for each infringing upload. Specifically, these rightsholders argue that such a system does not adequately prevent infringers from reuploading the same content after a successful notice-and-takedown action has concluded.
Other experts are skeptical that such change will occur—at least anytime soon. Efforts to alter the DMCA over the years have been largely unsuccessful. Take the 2011 proposal of the Stop Online Piracy Act (“SOPA”), for instance, which would have weakened safe harbor protections. The bill faced tremendous internet backlash and was ultimately shelved, evidencing the growing political power of the American tech industry. Moreover, despite years of litigation, companies like Viacom failed to convince courts to construe the DMCA in a way that would have required sites like YouTube to more actively regulate unauthorized content.
And so, while tech giants like Facebook and Google failed in their fight against Article 17, experts like Damle remain unconvinced that a similar battle in the U.S. would bring about the same result. These experts contrast U.S. tech companies’ considerable political power in the States with their comparatively modest power in Brussels, where they have been facing major obstacles for years. In fact, according to Damle, some suggest that the Directive was “in part, a protectionist measure targeted at U.S. companies in favor of European copyright industries.”
Time will tell which of the two predictions comes to pass.
Talin Markarian is a J.D. candidate, 2020, at NYU School of Law.