In a past life I was a student of governance and politics, and while that pursuit left me with little to show for it beyond a considerable raft of student loan payments, I did learn some important truths about how laws and rules actually work. There is of course the law as it’s proposed and written, the version of the law that is passed, and the law as implemented and interpreted. It’s in the latter stage where things can go a bit sideways, if they haven’t already done so previously, and where no small amount of public frustration with bureaucracy is born.
Techdirt’s Glyn Moody has an article on the process of the European Commission implementing Article 17 of the EU’s Copyright Directive, and how it’s failed the people actually using the internet in favor of those who would exert control in the name of copyright. In case you don’t have the directive in question committed to memory, Article 17 pertained to copyright filters that were to be mandated for sites that allowed users to upload content, as a measure of catching copyright infringement in its incipient stages. There were questions about whether Article 17 would be struck down by the Court of Justice for the European Union, but as no judgment has thus far been rendered, it fell to the commission to put filters in place.
It’s worth noting at the outset that filters are a deeply imperfect solution, one that tends to trample on the rights of the average internet user in the interest of preserving the rights of copyright holders. With that as context, it should come as no shock that the European Commission went even further in advancing the interests of rightsholders, weakening what exceptions existed to protect the rights of users to upload copyrighted material for legal uses.
As Moody notes in the article, the commission carved out room in the guidance for rightsholders to “earmark” copyrighted content that they deem would cause them economic harm. That earmarked content will then have to be reviewed by a human to judge the merits of the supposed infringement before it can be approved to be posted, with failure to review meaning the platform in question would be required to block earmarked content or risk losing any legal liability protections.
The likely result seems obvious to anyone who has paid attention to YouTube’s ongoing copyright saga: rightsholders will choose to earmark anything and everything, likely overwhelming what limited staff exists to adjudicate the matter. Short of heroic efforts on the part of moderators, these companies will hold veto powers over platforms and the content that can be uploaded. Moody does close out with a note that the guidelines in place are subject to change once the aforementioned court ruling is handed down, but it’s typically not an ideal situation to be waiting on a court decision to undo harm done by a body seemingly antagonistic towards those it is meant to serve.