The European Union has taken the first step needed to pass its controversial copyright directive, which critics have argued would stifle memes, remixes and other creative content online—and lead to more work for tech’s in-house counsel.
On Wednesday, the EU’s Legal Affairs Committee voted in favor of the legislation, a precursor to a plenary vote by the full EU Parliament later this year or early next.
One of the most debated parts of the legislation, Article 13, would require online platforms, such as Reddit or YouTube, operating in the EU to check user posts against a database of copyrighted work.
Posts that include copyrighted work—like scenes from a movie used in a meme—would then be automatically blocked from publication.
Beyond the possibility that Article 13 could stifle internet creativity, attorneys say Article 13 could introduce additional costs for tech companies and force legal departments to take on the tricky task of policing copyright issues on their sites more closely.
“Laws like this incentivize platforms to be conservative—if there’s an allegation of infringement, the legally safe thing to do is to remove it. For types of content that fall into a grey area: fair use, remixes, parody, this new law can be especially dangerous,” wrote Automattic general counsel Paul Sieminski in an email to Corporate Counsel on Tuesday. Automattic is the company behind popular online platforms such as WordPress.
“The key reason is that the law mandates automated filters, which are just not able to discern a case of legitimate copyright infringement from fair use,” Sieminski continued. “If a file matches the copyright database, it will come down, without regard to the context in which it’s used.”
For platforms filled with third-party inspired memes and gifs, such as Reddit or Twitter, or those that contain remixed songs, like SoundCloud, the introduction of automated filters could mean a lot less content.
In-house counsel will have to work alongside business partners to determine what compliance could look like—and if it’s possible with the platform’s current content and business model.
“There is the question every in-house counsel will need to face, which is, ‘Can we comply?” said Cathy Gellis, an outside policy counsel who works on internet platform law and other areas of tech law.
Gellis added that if the directive were to pass, platforms in the U.S. would have a limited number of options. They could not comply and pay whatever fines follow, comply and potentially lose large amounts of content and users, or cut out the European market. There’s also a chance that platforms could license copyrighted content.
Each option could be expensive—companies would pay fines, invest in costly new technology to filter content or lose out on a continent full of users, she said.
Critics of Article 13 have argued that these costs are a higher risk for smaller platforms, which may not be able to afford expensive automated filters needed to comply or afford to pay noncompliance fees.
“The only companies that are really going to be able to implement filtering on a wide scale are the big incumbent companies, like YouTube,” said Mike Godwin, a distinguished senior fellow with the R Street Institute and former GC of the Wikimedia Foundation. “If you want to be a startup rival to YouTube and you’re in the EU, you may never get enough capital to implement the amount of [technology] the proposed regulation seems to demand.”
In-house counsel at platforms able to stay afloat, should the directive pass, will have to decide what level of infringing content should be removed. Gellis said in-house counsel may want to keep Article 13 in mind when they determine what their companies’ content moderation policies and implementation would look like.
Joseph Gratz, a litigator for Durie Tangri, said that Article 13 is vague regarding what level of content should be removed—a full movie might be a clear candidate for takedown, but would a gif captured from that movie also be problematic? Because of this ambiguity, according to Gratz, legal departments may have to decide where that line will be drawn on their platform.
“The law is likely to leave a lot of very difficult implementation decisions to in-house counsel of these companies,” he said. “[They] will be in the position of having to do what traditionally the law required a copyright holder to do, [which is] to make decisions about the threshold at which a copyright will be enforced.”
“It’s definitely a tough position for in-house counsel to be in,” he added.