By Caragh Deery - Law Student @ St Hilda's College, Oxford
The practical impact of Article 17 of the DSM Directive will be to force sites such as YouTube to ‘filter’ or to pre-approve material uploaded onto its site. Internet service providers (“ISPs”) will incur liability (in the form of monetary damages) where they fail to do this.
One way to avoid liability will be for intermediary platforms to negotiate licensing agreements with the owners of copyright protected works. This way, they can obtain their permission for the copyrighted work to be uploaded lawfully. However, such agreements are costly, and negotiations may be time consuming. Moreover, some artists/authors are reluctant to authorise the licensing of their copyrighted work at all. In 2014, Taylor Swift refused to allow her music to be uploaded to the streaming platform Spotify for three years. Even where ISPs do wish to obtain a licensing agreement, there will be significant hurdles to do so.
Otherwise, an ISP will only escape liability where infringing material has been uploaded to its platform if it can prove to the court that it has made “best efforts” to ensure that the protected material was not made available on its platform, and that it acted quickly to remove the infringing material upon becoming aware of it. To this end, the Directive has been criticised by platforms such as Google for severely limiting the flow of creative freedom. To filter material on a large scale, mega-platforms will have to implement automated systems. Algorithms are prone to errors, and ISPs will want to ensure that their algorithm is over- rather than under-inclusive order to minimise their liability. This inevitably means that some legitimately used content will be removed.
YouTube has already introduced a filtering mechanism with its Content ID system and it reveals some such difficulties which lie ahead. Whilst the accuracy of the system in taking down copyrighted works is 99%, this statistic is deceiving. The sheer amount of content being uploaded onto YouTube means that an enormous amount of content is still misidentified. Moreover, use of copyrighted works is sometimes excusable if the user is able to rely on a statutory defence, such as if they were using the work for the purpose of parody. Parodies are an important vehicle for creativity, and in the worst-case scenario, heightened monitoring by ISPs could have dangerous consequences for free speech by limiting access to such works. Koren has argued further that greater power to monitor what is being uploaded onto ISPs increases the potential for censorship based on social or political ideology.
On a practical level, automated systems are simply unable to capture nuanced arguments such as reliance on a statutory defence. This will result in many content creators appealing decisions or resorting to litigation, which will create many issues for ISPs. The aims of the Directive are (arguably) well-intended but are simply ahead of the technology available to many companies.
The real impacts of Article 17 remain to be seen. Its true effects will ultimately depend upon how EU Member States choose to draft the domestic legislation transposing the Directive and how domestic and European courts approach content-related disputes between parties. One thing that is certain, is that Article 17 will alter the digital landscape dramatically – and probably not for the better.
Further reading:
https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban (Note: Article 17 was formerly known as Article 13)