Europe’s Copyright Directive: Article 17 | Shifting the Burden on Policing

Recently we discussed the implications of EU’s Copyright Directive, Article 13.  We now discuss the directive further delving into Article 17. 

It appears the European Union intends to be at the forefront of intellectual property law innovation through Article 17, another controversial new copyright directive intended to standardize copyright law among European Union member nations.  

Article 17 of the Copyright Directive is an amendment that shifts the burden of copyright infringement policing from copyright owners to the streaming platforms on which the works are uploaded.  The Copyright Directive’s Article 17 was originally voted upon in 2006, but has now received renewed attention as it approaches the final stages of implementation by the European Union member nations.  

Advocate Opinion on Copyright Directive Article 17 

While proponents of Article 17 state that the amendment to the Copyright Directive is intended to help protect content creators and allow them to better monetize their works, critics note that the implementation of Article 17 may result in pushing out smaller players.  As an example, YouTube has an estimated whopping 300 hours of video being uploaded every minute.  Experts in the field note that placing the onus on YouTube to monitor such uploading activity would most likely have to result in the implementation of automated filters to check for copyright infringement.  It has been noted in recent news, regarding YouTube itself, that automated filters can have major flaws.

Critical Opinion on EU’s Article 17 of the Copyright Directive

Since it is known that such automated filters are rarely on point and often cannot distinguish original content or fair use of content (e.g., parody or critique of a work from the original work) from infringing content, other experts believe that the end result of Article 17 will be self-defeating.

Moreover, critics of Article 17 of the Copyright Directive also note that smaller platforms and other startups that want to compete with platforms such as YouTube, Facebook, and Twitter will have much more difficulty doing so against such giants, if they cannot afford to implement time consuming review and policing measures, or to pay for the creation of automated filters or other similar procedures that are sure to be costly and potentially deterrent for smaller companies to attempt to do business in the same space.

Who Acquires the True Burden in Copyright Infringement Policing? 

Some opponents of the EU Copyright Directive’s Article 17 also point out that it may actually increase the burden of policing copyright infringement on content creators instead of shifting it as intended.  Specifically, because copyright owners’ new works may get unfairly flagged or filtered out, these creators may ultimately end up losing precious time and money fighting to get the content uploaded and monetized, which goes against the original intention of Article 17 of the Copyright Directive.  

However, there are still two more years left for the European Union’s Copyright Directive, including Article 17 as currently drafted, to be completely implemented at the national level.  So, changes may still be forthcoming and proponents, as well as critics, should keep informed of developments.

How Do Europe’s Laws Affect the United States?

With businesses easily going global through use of the Internet, foreign laws and regulations are becoming more relevant to seemingly “domestic” companies. While the news focus is often on large corporations with global reach being the targets for EU compliance issues facing Facebook and Google, for example, the EU regulations have the ability to reach small Internet businesses opening the door (openly or inadvertently) to worldwide reach.   

Many United States companies have already struggled to meet the strict requirements of the General Data Protection Regulation (GDPR) and have been fined for non-compliance. It will be interesting to see how American companies innovate and adjust to try to deal with the implementation of the controversial EU Copyright Directives, both Article 13 and Article 17.

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software & copyrights

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