EU Copyright Directives and their impact on Libraries

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EU Copyright Directive

“What will almost-free software and proliferating content do to commercial markets for content? How will people - writers, programmers, and artists - be compensated for creating value? What business models will succeed in this foreign economy?

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“In a new environment, such as the gravity field of the moon, laws of physics play out differently. On the Net, there is an equivalent change in "gravity" brought about by the ease of information transfer. We are entering a new economic environment - as different as the moon is from the earth - where a new set of physical rules will govern what intellectual property means, how opportunities are created from it, who prospers, and who loses.

“Chief among the new rules is that "content is free."

Esther Dyson

“Intellectual Value”

Wired Magazine, July 1995

The internet world is once again all ‘a-buzzin’ about digital copyright laws; this time because of the European Union’s adoption of the Directive on Copyright.

It’s not the first time the world has been up in arms about new regulations regarding intellectual property.  Ever since the first copyright act of 1710 was brought into existence, people have been debating the rights of creators with those of consumers, and the dawn of the internet only served to turn up the volume on those arguments.

Some of you may recall in 1995 when the Intellectual Property and the National Information Infrastructure (NII White Paper) by the US White House Working Group was released.  What was described as “no more than minor clarification and limited amendment” to the Copyright Act, was quickly and roundly criticized as a Copyright Grab, a “significant erosion of fair use” and a “threat to privacy rights” by library and academic institutions. 

To put those criticisms in perspective:  According to the NII White Paper, if you were to give your paid copy of a newspaper to a friend to read, you would be infringing on the copyright of the publisher.  I know, it sounds a bit silly today given how much is shared online, but those who lobbied against the white paper recommendations weren’t waiting to see who got the last laugh. 

Due to the persistent solidarity of libraries, academics, and ISPs, the NII White paper remained stalled in Congress and was eventually replaced with the Digital Millennium Copyright Act in 1998 — a US copyright law that implemented two of World Intellectual Property Organization (WIPO) treaties of 1996.

It wasn’t perfect, but it also didn’t lead to a “pay-per-use intellectual universe” as the American Library Association feared.  And fair use is, for the most part, still alive and kicking online to this day, despite repeated attempts to handcuff it.

Copyright is a double-edged sword

Copyright laws are a necessary evil in the protection of intellectual works, but it’s hard to take a side when both sides of the debate could be right. It’s all about context.

On the one hand, you have a creator who wants to be paid fairly for their work.  Nothing wrong with that.

On the other, you have a user who wants to share the creator’s work with others to increase their own reputation perhaps, or just for fun — an act that technically breaks the law.  But here’s where being paid fairly comes into question.   That act of sharing could also result in increasing the audience reach for the creator and subsequently lead to new sources of income for the creator.

So who’s right?   Cop-out answer, “It depends.”

I’ve always believed that quality content deserves compensation, regardless of its form.  I also strongly believe in the democratization of information.

So how are both possible?  In the newspaper and magazine space, there are lots of businesses more than willing to sponsor access to content on behalf of their customers.  Hotels, airlines, cruise lines, ferry lines, and libraries have been doing this for years.  It’s a win-win-win situation with no copyright cops required.

  • Businesses can offer unique value to their customers in an eco-friendly way, saving money while growing brand equity and loyalty across all demographics.
  • People get frictionless access to quality, trusted content, and an engaging experience at no charge to them.
  • Publishers are instantly served a massive captive audience they couldn’t access on their own (let alone get them to pay), growing reach, auditable circulation, and revenues.

It’s a monetization model where both creator compensation and democratization of content can live in harmony.

The internet is a sharper double-edge sword

Today we live in an era of abundance, with endless access to knowledge and information.  Life is good!

We have virtually unlimited, many-to-many communication capabilities with people all over the globe — a phenomenon that never existed before the internet and one that has completely inverted the company-consumer power funnel.  People rule the internet, not corporations, governments, or institutions.  Life is very good!

But with every silver lining, there also exist one or more threatening clouds. 

Copyright infringement has reached epic proportions.  Everyone steals — most without even realizing it.

Privacy is almost impossible to control unless one is forever off the grid.  

Our rights to be anonymous during simple acts like reading, listening, or watching media are a thing of the past.

Efforts like Europe’s General Data Protection Regulation (GDPR) are honorable attempts to protect one’s right to control access to personal data, but has proven, so far, to be basically ineffective.  Since GDPR went into effect in 2018, the vast majority of offending businesses have not been fined for failing to protect user data.  But even if those levies were enforced, they would be too insignificant to be taken seriously by many businesses.   Even Google’s US$50M fine was nothing more than a slap on the wrist.

Life today is “complicated” to say the least, and it’s getting even more so.

Constant copyrighting

When it comes to copyrighting, the only constant seems to be a never-ending exercise of write, review, reform, repeat.  Since the advent of the internet, governments around the world have tried and failed to adequately police copyright liability on the web. 

The enforcement of copyrights in the 1800s was manageable by the sheer nature of the physicality of the products being protected. But today, despite the very best efforts of very intelligent people, copyrights are next to impossible to safeguard online. 

Yes, there were some exceptions to that.  Think Napster.  Even with 57 million users in the early 2000s, the peer-to-peer music sharing service was forced out of business through multiple lawsuits because Napster made it easy to access music for free. 

But on the flip side, you have Sony Corporation, who in 1976 introduced into the US its Betamax video recorder — a technology that allowed users to “time-shift” TV shows by recording them if they were not at liberty to watch them at the scheduled time. Universal and Disney saw this as a direct threat to their video libraries and sued Sony.  To make a long drawn out lawsuit story short, the US Supreme Court finally ruled in favor of Sony saying that taping content for private entertainment purposes constituted fair use.

Now how is this different from Napster?  Both offered file sharing applications intended for personal use.  It’s an interesting debate that could go on and on.  But imagine if the results of Sony’s suit went the other way around.  Would any of us have VCRs/PVRs/DVRs in our living rooms today?  But, I digress.

Getting back to the great debate over the latest EU copyright reforms…

The current state of the EU Copyright Directive

When I think about what the European Union has tried to do to reform copyright law in the EU, I’m reminded of the old aphorism, “The road to hell is paved with good intentions.”

When the EU decided to revamp the 2001 Copyright in the Information Society Directive, most people were all for the plan.  To bring archaic legislation in line with today’s internet realities by strengthening intellectual property protection and ensuring equitable remuneration for legal owners of that intellectual property was an honorable goal.

Not surprisingly, it was applauded by content producers (e.g. musicians, artists, newspaper and magazine publishers, movie studios, etc.) and criticized by internet purists - staunch internet users, tech companies, and advocates of human rights - who saw it as a way to overturn the fundamental principles of knowledge sharing.

It was a tumultuous two years of lobbying and protesting by the likes of IFLA, Wikimedia Foundation,, activists, and academics who pushed hard for changes to the proposed reforms. And despite not getting everything they wanted, good progress was made.  What was finally ratified in March 2019 looked quite a bit different than what was presented in 2018 thanks to their, and many others’, concerted efforts.

However, the two most contentious issues for libraries and schools last year are still raising eyebrows and blood pressures.

  1. Article 15 (previously numbered 11) was designed to force big platforms to pay license fees (AKA snippet taxes) in order to publish links to news content on their sites.  On paper, it seems reasonable, but when translated into bits and bytes the new law will have many unintended consequences that could impact patrons, students, and society at large — not the least of which is its impact on an already increasingly media-illiterate society. 

What Google offers to media in terms of free content discovery and monetizable website traffic is hugely beneficial to publishers.  And I would argue that most publishers would agree that the alternative of Google not providing snippets is not an acceptable outcome for anyone.  Next to direct access to websites, Google is the most popular way for people to discover news. Publishers can’t live without Google, and they know it.  It could be why most of them don’t block Google from accessing content through their robot.txt files even though they have the power to do just that.

Facebook is a different animal altogether.  While Google can still play the role of frenemy with media, Facebook has proven itself to be nobody’s friend.  Famous for bait and switch scenarios, outright lies, false promises, and constant manipulation of newsfeeds, users, publishers, and advertisers to bolster its own bottom line, the social giant has become publisher enemy number one for good reason. 

The problem is that the googles and facebooks of the world don’t know how to talk to publishers and vice versa.  So perhaps Article 15 could be a very good thing if it finally forces the opposing parties to come together, have a conversation, and negotiate an agreement - an equitable licensing framework that serves the needs of both publishers and platforms - and, most importantly, digital citizens.

  1. Article 17 (previously 13) is probably the most controversial directive in terms of its impacts on freedom of expression and content sharing, despite the EU’s assertion that the use of copyrighted material for "quotation, criticism, review, caricature as well as parody" will be allowed.

The fear is that the platforms on which these materials will be shared won’t know if an individual’s works are legal or not and will choose censorship over freedom of expression to play it safe.

And then there is the requirement to proactively prevent infringing content being displayed on a platform.  Small platforms and startups are unlikely to have the technology to support this level of assessment, putting them at a disadvantage and reducing their ability to compete with the big guns.

In addition, these small sites will have fewer incentives to scale as their success will only lead to increased liability and more incentives to block user-generated content.  The irony of this whole directive is that in the end, the major platforms, the original targets of Article 17, will be the only places people and creators will be able to easily share their works.

So the lobbying and disputes are not over.  As the law is implemented, more work will be needed at the individual country level to ensure that the implementation reflects not only the rule of law, but the spirit of it as well.

Don’t panic

Despite the fear, uncertainty, and doubt surrounding the new EU legislation, there’s no need to panic. 

What’s happening in the EU is not the end of the internet as we know it, just an attempt to balance the scales between those who champion unregulated internet freedoms and those who want to control them.  

Yes, the new legislature does favor the content creators over consumers, but so did the copyright laws we’ve been living quite comfortably with for decades.   And despite their advantage under this new law, I don’t believe it will solve the systemic struggles most media companies face today.  That’s a whole other story, but it reminds me of something Eric Schmidt, CEO of Alphabet Inc., once said…

 “The Internet is the first thing that humanity has built that humanity doesn't understand, the largest experiment in anarchy that we have ever had.”

The experiment isn’t over. In fact, it’s just starting to get interesting.  Technology is advancing far faster than the human mind can comprehend. According to best-selling author, one of the world’s leading futurists, and Google’s director of engineering, Ray Kurzweil, technology is moving so fast that by 2045, Artificial Intelligence will exceed human intelligence.  

Power of technology growing exponentially

The internet is still in its infancy, and we’re about to enter into a very exciting era as it matures at lightning speed - evolving into a digital, virtual, and artificial world that governments and lawyers could never imagine. 

So pay attention and take action where necessary, but don’t panic.  With governments’ modus operandi of moving at a snail’s pace, the whole copyright implementation and enforcement in the EU may end up being a much ado about nothing.

This article was originally published in The Insider Magazine.

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