Consensus before Censorship – why the Copyright Directive was rejected

An impossible code

Having only recently recovered from the GDPR frenzy which gripped the continent in May, some media companies will be feeling relieved that the European Parliament last week sent controversial copyright reforms back to the drawing board. The proposed legislation included Article 11, which would require online platforms – search engines, news aggregators, etc. – to pay publications if they link to them. Article 13 meanwhile would have made copyright enforcement the responsibility of online service providers, and asked them to use content recognition technology to censor material at the point of upload.

Over the past few years, we’ve witnessed an increasing inclination from the EU and its member states to privatise tasks which many believe should be undertaken by the police and courts of the respective state. As with the censorship of online hate speech, the ongoing debate has centred around just who ought to be arbiter of these laws – i.e. humans or machines. The trouble is that the scale of the challenge is simply too big for lawyers and the algorithms seemingly aren’t up to the task either. And while technological solutions do exist, they are presumably only useful so long as there is consensus. What the rejection of the legislation has demonstrated is that the world still lacks a one-size-fits-all solution.

One of the major differences between US and EU copyright law relates to Moral Rights: the rights of the author to control the integrity of their work. Currently, the US – whence came Google, Facebook and Twitter –  recognises moral rights to a far lesser extent than the EU; it is both transferable and waivable. For the EU, moral rights are non-transferable and unwaivable – that is, authors can prevent anyone altering their work in perpetuity. Prima Facie, this seems reasonable but – fear mongering aside – Europe’s commitment to the moral rights of copyright owners, and willingness to leave their protection to technology, undoubtedly stands to alter the current internet ecosystem.

The merit of these strict rules is the prevention of authors’ work being appropriated by peer-to-peer sharing networks and digitally mashed up beyond recognition. But the strict defence of an author’s moral rights could prevent a lot more than remixes and parodies from existing. Just as YouTube can already automatically demonetise your video for using five seconds of a Disney song, your meme probably wouldn’t upload because it has Spongebob in it. I’ll go out on a limb and speak on behalf of digital natives: from a strictly utilitarian perspective, memes are something of a red line. What is more, the legislation could have forced websites like Reddit to filter user content for copyright breaches and impose a “link tax” on any companies who link to publishers. Writing from our very own echo chamber, I’m compelled reiterate my colleague Josephine’s sentiment: it would be a real pity if we lost sight of the positive impact these virtual communities have on a range of people.

There is much to be said for the EU’s current push to crack down on the data hoarding, tax avoiding giants, and there is plenty of reason to bring laws into line with modern technology. But, as last week shows us, that doesn’t mean that every such measure is a good one. Google already have a very expensive Content ID system for copyright owners, and despite its flaws, AI content analysis is constantly improving. Expecting software to become better faster by forcing the hands of large corporations won’t guarantee the technological strides regulators solicit. States should instead look for consensus on precisely what constitutes grounds for censorship prior to outsourcing their own duty to copyright holders.

Rhea Mills

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Martin Tripp Associates is a London-based executive search consultancy. While we are best-known for our work in the TMT (technology, media, and telecoms) space, we have also worked with some of the world’s biggest brands on challenging senior positions. Feel free to contact us to discuss any of the issues raised in this blog.