Link Taxes and Upload Filters: Copyright Protection for the Digital Age

Roberta Turner

Vol. 40 Executive Editor

Copyright laws have protected the intellectual property of writers, composers, and choreographers since at least 1710,[1] but the increasing reliance on the internet in the last twenty years has drastically changed the landscape of media consumption and copyright law.[2] The European Union has attempted to address the new challenges to copyright law in an update to the 2001 Copyright Directive that is likely to be approved when put to plenary vote in January.[3] The updated Copyright Directive was initially proposed in 2016, but has undergone a number of changes. Last month, the EU Parliament voted 438 to 226 to approve amendments that are likely to make the Directive palatable enough to pass the final vote in January.[4] Controversy over Articles 11 and 13 Debate over the proposed Copyright Directive centers largely around articles 11 and 13.[5] Article 11 grants rights to news agencies “for the digital use of their press publications.”[6] Article 13 obligates service providers to aid copyright holders in identifying and precluding unauthorized use of media. The Article specifies “the use of effective content recognition technologies,” otherwise known as upload filters.[7] Proponents of the legislation include news agencies and members of the music industry. Unsurprisingly, critics of Articles 11 and 13 include internet social media and information platforms such as Google and Facebook, as well as the open-source information site Wikipedia.[8] Opposition within the EU is spearheaded by Julia Reda, a Member of European Parliament (MEP) from Germany’s pro-internet privacy, pro-internet freedom Piratenpartei.[9] Ms. Reda has been instrumental in increasing the transparency of negotiations surrounding the Copyright Directive.[10] Article 11: The “link tax” Article Article 11, as initially proposed in 2016, protects the rights of press publications for 20 years. The article allows for a narrow exception allowing “authors and other rightholders” to promote their own work, in line with rights granted by the EU.[11] The amended version of the proposed directive reduces the publisher’s monopoly to five years and excludes “legitimate private and non-commercial use of press publications by individual users” and hyperlinking from the reach of the monopoly. [12] Potential Consequences of Article 11 Large companies like Google or Facebook are likely to be able to financially absorb the so-called “link tax.”[13] At risk are smaller news-aggregate start-ups like Buzzfeed and Wired.[14] Some fear that the implementation of Article 11 will lead to widespread dissemination of poor-quality and unreliable news as the spread of vetted news sources becomes cost-prohibitive.[15] The drafter of the 2018 amendments to the Copyright Directive, Axel Voss,[16] dismisses concerns regarding the “destruction of the Internet” as false.[17] Article 11 will undoubtedly affect the way news aggregators, blogs, and social media platforms operate. While it is still unclear what will happen if or when the Directive is passed, publishers may find that an unintended consequence of the Directive is a proliferation of original writing by bloggers and small-time news outlets and a decrease in redirected traffic to the protected news agencies. Article 13: The “upload filter” Article The original Article 13 proposal required “information society service providers”[18] to shoulder the burden of preventing all users from uploading unauthorized content by passing the content through “upload filters.”[19] The updated article recharacterized the liable parties as “online content sharing service providers,” giving a definition of such service providers that excludes non-commercial encyclopedias and educational repositories.[20] Potential Consequences of Article 13 Just as Google and Facebook are much more likely to adapt to the changes in copyright law, major online content sharing service providers like YouTube already have upload filters in place and are also likely to adapt to the new requirements. While non-commercial sites like Wikipedia are now likely outside the reach of Article 13, it is unclear where independent sites hosted by platforms like WordPress will fall. WordPress technically falls under the umbrella of a commercial site wherein users upload a great deal of content. This could mean that WordPress would be required to use upload filters to oversee independent websites powered by WordPress.[21] Another reason opponents of the Copyright Directive are concerned, is in regard to the scope of copyrights.[22] Despite parliamentary discussions proposing exceptions that would allow for parodies and other fair use[23] of media online, neither the proposed directive nor its amendment includes such an exception.[24] This could mean that memes, gifs, and snippets of songs in the background of home videos could all be banned from social media.[25] The music industry could also suffer under the new legislation. Gifs and memes are sometimes instrumental in keeping artists relevant. Stringent regulations around uploaded media content could mean the end of spontaneous career resurgences for artists like 80s pop musician Rick Astley, the subject of the “Rick rolling” social media craze.[26] Just what effect the Copyright Directive will have on the way news is disseminated and media is shared remains to be seen, but if implementation of the EU “Cookie Law”[27] is any indication, the results will be felt around the world.

[1] The 18th Century, The United States Copyright Office, https://www.copyright.gov/timeline/timeline_18th_century.html (last visited Oct. 14, 2018). [2] Enquiries into Intellectual Property’s Economic Impact, Organization for Economic Co-operation and Development, (2015), https://www.oecd.org/sti/ieconomy/Chapter5-KBC2-IP.pdf pp. 210, 213. [3] Mark Sweney, EU Copyright Law May Force Tech Giants to Pay Billions to Publishers, The Guardian (Sept. 12, 2018), https://www.theguardian.com/law/2018/sep/12/eu-copyright-law-may-force-tech-giants-to-pay-billions-to-publishers-facebook-google [hereinafter “Sweney”]. Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market, COM (2016) 0593 final (Sept. 14, 2016) [hereinafter “Proposal”]. [4] Sweney supra note 3. [5] Id. [6] Proposal supra note 3, Article 11.1. [7] Proposal supra note 3, Article 13.1. [8] Sweney supra note 3. [9] As the German branch of Pirate Parties International, Piratenpartei advocates for, among other issues, digitization for the good of citizens, privacy and data protection, governmental transparency, and freedom of information. Partei, Piratenpartei Deutschland, https://www.piratenpartei.de/partei/. [10] Julia Reda, What’s at stake in the July 5 #SaveYourInternet vote: The text, explained, Julia Reda (June 29, 2018), https://juliareda.eu/2018/06/article-11-13-vote/. [11] Proposal supra note 3, Article 11.2, 11.4. [12] Axel Voss, Draft List of Compromise Amendments, Julia Reda (June 12, 2018), https://juliareda.eu/wp-content/uploads/2018/06/voss.pdf [hereinafter “Voss”]. [13] The so-called “link tax” would require third-party websites to compensate news agencies for preview links to articles. Julia Reda, Extra Copyright for News Sites (“Link Tax”), Julia Reda (Oct. 2, 2018), https://juliareda.eu/eu-copyright-reform/extra-copyright-for-news-sites/ [hereinafter “Link Tax”]. [14] James Vincent, EU Approves Controversial Copyright Directive, Including Internet “Link Tax” and “Upload Filter, The Verge (Sept. 12, 2018), https://www.theverge.com/2018/9/12/17849868/eu-internet-copyright-reform-article-11-13-approved. [15] Link Tax, supra note 13. [16] Axel Voss is a member of the Christliche Demokratische Union Deutschlands (Germany’s Christian Democrat party) and represents Germany in the EU Parliament. He is also closely associated with the European People’s Party. Joanna Plucinska and Janosch Delcker, Man in the Eye of Europe’s Copyright Storm, Politico (Sept. 11, 2018), https://www.politico.eu/article/axel-voss-the-man-in-the-eye-of-europes-copyright-storm/. [17] Jennifer Rankin, Battle over EU Copyright Law Heads for Showdown, The Guardian (Sept. 9, 2018), https://www.theguardian.com/technology/2018/sep/09/battle-over-eu-copyright-law-heads-for-showdown. [18] An information society service provider is an entity that provides “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service.” This includes webhosts and internet service providers. Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, 2000  O.J. (L 178) 1. [19] Proposal, supra note 3, Article 13. [20] Voss, supra note 11, Article 13. [21] Klint Finley, Europe’s New Copyright Law Could Change the Web Worldwide, Wired (Sept. 12, 2018), https://www.wired.com/story/europes-copyright-law-could-change-the-web/. [22] Julia Reda, Upload Filters, Julia Reda (Oct. 2, 2018), https://juliareda.eu/eu-copyright-reform/censorship-machines/. [23] The fair use doctrine in copyright allows for limited use of copyrighted material without prior authorization. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (holding that even parodies of a commercial nature may be protected under the fair use doctrine); Kelly v. Arriba Soft Corp., 336 F.3d 811 (9^th Cir) (holding that thumbnail images used for hyperlinking is allowable under the fair use doctrine). [24] Julia Reda, EU Copyright Reform/Expansion, Julia Reda (Oct. 2, 2018), https://juliareda.eu/eu-copyright-reform/. [25] Sarah Jeong, New EU Copyright Filtering Law Threatens the Internet as We Knew It, The Verge (June 19, 2018), https://www.theverge.com/2018/6/19/17480344/eu-european-union-parliament-copyright-article-13-upload-filter. [26] Joyce Chen, The Best Rickrolls Ever: Rick Astley’s ‘Never Gonna Give You Up’ Turns 30, Rolling Stone (July 27, 2017), https://www.rollingstone.com/culture/culture-news/the-best-rickrolls-ever-rick-astleys-never-gonna-give-you-up-turns-30-129250/; Stephanie Schulte, Why Rick Astley Is Perfectly Happy with Rick-rolling, The Press-Enterprise (Jan. 18, 2017), https://www.pe.com/2017/01/18/why-rick-astley-is-perfectly-happy-with-rick-rolling/. [27] Cookies are tags dropped to computers visiting a website that can be used to track repeat visits and user preferences. The EU “Cookie Law” refers to an amendment to the EU Privacy and Electronic Communications Directive that requires websites to have users affirmatively opt in to collecting cookies rather than allowing them to opt out of the default cookie collection setting. Olivia Solon, A Simple Guide to Cookies and How to Comply with EU Cookie Law, Wired (May 25, 2012), https://www.wired.co.uk/article/cookies-made-simple. 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