After adopting Digital Single Market (Proposal) on 6th May 2015, the European Union Commission is out with its Proposal for a Directive of the European Parliament and of the Council on Copyright in Digital Single Market, Article 13 of which is a breakthrough of copyright norms worldwide. It has been reiterated as follows:
Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users
1) 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. Those measures,
such as the use of effective content recognition technologies, shall be appropriate and proportionate.”
This means that all the Internet Platforms that hold a large amount of user-uploaded material like Facebook and Youtube are now in charge of policing the content before its publication into their platforms to avoid copyright infringement, and will have no more ‘Neutral Intermediary’ protection they usually availed by E-commerce Directive in EU.
The proposal above which mandates a content recognition technology is contradictory to EU’s E-commerce Directive. Recital 47 of the e-Commerce Directive mandates that “The Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific cases.” But this recital can be easily circumvented because of its vague language aided with the language of Recital 48 providing that nothing can stop the member states to apply reasonable “Duty of care” to the service providers.
Recent Youtube Copyright Infringement
An uploader published copyright protected (allegedly stolen) videos of Plus 4, An Austrian Television Station and sued YouTube for allowing it to be published. If a similar judgment were to happen in the United States, the implications could be huge.
YouTube has been sitting safely under the umbrella of the Digital Millennium Copyright Act‘s “Safe Harbor” clause for years. After Viacom sued YouTube in 2007 for hosting around 79,000 videos that featured some Viacom-owned content, the court ruled in favor of the video platform because it could answer “no” to three questions: Did YouTube have “knowledge or awareness of any specific infringements”? Did YouTube purposefully shield itself from knowledge of the infringements? And did YouTube have the “right and ability to control” activity on its site that led to those infringements? In essence, answering no to all of these questions makes YouTube a “neutral intermediary,” exactly what the Vienna court believes it is not.
Therefore, the contentious Article 13 of the Copyright Directive goes for a vote on 20th June 2018. This Article if enforced is likely to cause uproar amongst digital activists and also make the copyright provisions highly strict and complicate publications and broadcasts, and will also lead to erasing away of existing content like memes, music covers, etc, as a non-transparent filtering device will be mandated to be installed by such hosts.