Europe’s Controversial Copyright Directive Explained

The European Parliament finally passed its controversial copyright directive this week, but critics have argued this will be the start of the end to a free and open internet.

There’s a reason this EU directive has gained much more notoriety than almost any other previous legislation. The EU’s new legislation shifts responsibility to platform holders who host content, but may not affect those who create content.

The EU believe that copyright law needs to be brought up-to-date for the modern digital single market. The new Modernisation of the EU copyright rules aims to achieve three main objectives:
1. Better choice and access to content online and across borders.
2. Improved copyright rules on research, education and cultural heritage.
3. Achieving a well-functioning marketplace for copyright.

However, the majority of opposition to the directive is aimed at the infamous Articles 11 and 13, also known as the ‘link tax’ and the ‘meme ban’, respectively. These articles have generated so much criticism, the fear is that they could potentially set a dangerous precedent for the future of internet freedom around the globe, which would also impact popular video game streaming platforms like Twitch and YouTube.

Article 11

Article 11 requires search engines and news platforms to pay to use third-party content. The idea being to effectively licence content in the aim to protect content owner’s rights. Whilst a provision which protects owner rights sounds fair, the EU themselves argue that it should slice the financial pie more evenly between content creators, search engines and other host platforms. However, this in effect means that only big news and media corporations will be able to reasonably afford to pay for licensing fees.

Whilst Article 11 will not really affect the games industry itself; but smaller gaming news websites might struggle if they use third-party content without paying for it. Some may even have to close down if they can’t generate all their own content themselves, or afford to pay for third party content.

Article 11 has also been referred to as the ‘link tax’, meaning that search engines that feature snippets of other’s content will have to pay them for using them. Google is the largest search engine in the world which features millions of web pages, each of those web pages usually contain a title, snippet and meta-description. Its standard search engine optimisation (SEO) practice to help your web page gain more views. Furthermore it benefits both the creator to generate views, and the reader to identify if the web page is worth reading. Article 11 means that companies who display people’s headlines and snippets will have to pay to continue displaying them.

Article 11 was voted down in September 2018 and the new wording of the legislation has softened. Now, websites won’t be charged for using individual words of parts of sentences from other websites. Furthermore, they also won’t pay for linking back to other’s content. Google even threatened to remove its news service from Europe in protest. The most likely conclusion to Article 11 will be that search engines will only display enough content to avoid paying the link tax. Resulting in reduced traffic to websites and depriving readers of valuable quick information.

What some people may not know is that the ‘link tax’ has actually been attempted before in 2014. Axel Springer (Germany’s biggest news publisher) attempted to sue Google to block them using snippets of articles from its newspapers. They tried to licence their content and argued that if Google wanted to feature their work they would have to pay for that priviledge. However, Google responded by removing their news articles from its search engine altogether. This resulted in significantly decreased web traffic for these sites. Axel Springer were forced to let Google show news stories in its search results, otherwise they would have removed themselves from the market.

Article 13

Article 13 has been designed to try to make platform owners responsible for any content posted without a copyright licence. It proposes that content host platforms like YouTube and Twitch would be liable for hosting copyrighted content, instead of the people who upload it. This dramatically shifts responsibility to largely unaccountable host platforms to suddenly regulate all content for copyright infringes.

However, the technology needed to undertake such a momentus task just isn’t adequate for the new legislation. The only major website with a content filter in place is Google-owned YouTube. Whilst some argue that this gives the company a competitive advantage, and perhaps even a monopoly to sell its content filter to other companies. Google’s content filter has some major flaws, during tests its struggled to differentiate original content from copyrighted. Some content was prevented from being uploaded even though it was original and shouldn’t have been blocked.

Furthermore, YouTube’s chief executive Susan Wojcicki said the new directive will harm content creators. The expectation on host platforms are unrealistic because owners regularly disagree over ownship rights to online material. As a consequence this will put too much pressure on websites to be the legal arbiter of who is right.

It is impossible to expect the open platforms that host this content to make the correct rights decision.

Ultimately, this adds a whole new layer of admin and cost for the platform holders which didn’t previously exist. Companies like Twitch and YouTube could make agreements with copyright holders. However, their opposition to the new directive is most likely due to the increased costs of using content filters or paying for game licenses.

Article 13 has also been labelled as the ‘meme ban’, arguing that it will kill online creativity, freedom of expression and satire. However, the EU have made clear that the new directive will not affect ‘parody’ which they say includes memes.

The legislation is clearly far from perfect, but its not likely to negatively impact large corporations. Some argue that YouTube and Twitch host huge amounts of gaming content that they should accept legal responsibility for content, and to work with copyright holders ensuring content is protected and owners are compensated. Smaller websites and gaming news sites will be impacted and feel burdened by fewer resources to generate all their own content without third-party content. Furthermore, game companies could revoke licenses for negative coverage of their products, but its unlikely considering video gaming platforms receive billions of views a day.