If there is anything that has been learned over the past few years of observing the portion of the internet wherein regular folks interact with one another, it’s that moderation and monitoring are hard but necessary chores incumbent upon the platforms that to this point have wanted all of the perks of an enormous user base with with a minimal amount of the responsibility. Hand-in-hand with questions about speech have come concerns about copyright, which as a statutory measure has served as no deterrent at all; if people know about copyright, they often simply don’t care.
Enter the European Union and its Copyright Directive. The bloc passed the measure back in 2019, which directed its member states to implement laws and practices that would filter content uploaded to websites to present the sharing of copyrighted material and thus the violation of said copyright. As you might expect from this type of law, the implementation has been challenging and the unintended consequences far-reaching, as automated filters can prove to be more of a nuisance than a help and more users with a legitimate claim for their use of materials affected than malign actors.
In a pair of articles for the Kluwer Copyright Blog, Julia Reda and Joschka Selinger lay out in compelling detail the case against Article 17, or at least an argument for the many ways in which the law was ill-conceived and misguided, which is argument enough for its amendment or repeal. (You can read Part 1 here and Part 2 here.) The central thrust of the articles is that the measures place an undue burden on businesses, namely those small businesses without the resources of those platforms that leap to mind when regulation is mentioned. Consideration is also given to concerns about governments using such filters as a de facto check on free speech for published content they don’t like.
Both are very real concerns that are likely warranting more conversation now than they did at the time of the legislation’s passage. Such is the nature of modern governance, it would seem: in a drive to appease powerful stakeholders, individual rights and unintended consequences are seemingly second or third-order concerns. Reda and Selinger even go so far as to say,
“We find that the legislator may have grossly underestimated the impact of Article 17 on the freedom to conduct a business.” It would be a more damning quote in a different context, but as it concerns copyrights and rightsholders, more surprising would be an overestimation of the impact, or frankly even a consideration of the impact at all.
Now it falls to the courts and respective governments of the EU to figure out if copyright filters are a legitimate tool for use, or if they even work, or if the whole affair has been made worse for the efforts of the European Parliament. Certainly it’s another illustration as to why copyright protection has been such an intractable problem in the digital age, and hopefully it can serve as a warning to other countries as to the dangers of a less than considered approach to solving the problem.