COPYRIGHT, CREATIVITY AND COMMUNICATIONS AFTER THE EU'S COPYRIGHT DIRECTIVE
Like it or not, the internet is the means by which most communication is now facilitated. Businesses rely on social media, news aggregators and their own platforms to share content, news and information with their stakeholders. But, with the new European Union copyright directive, the relationship between communications and the internet may be about to fundamentally change.
And it’s…complicated. For tech and social media companies, the issue is one of policing content, of ensuring copyrights are licensed at the point of upload. For creative businesses, like photography providers, music labels and publishers, copyright protection may be a thing long sought. The impact it will have on communications, then, is closely tied to the sector in which the company resides.
For businesses in the creative industries, including music, film and entertainment, the copyright directive is a boon. Elizabeth Ward, principal at IP specialist Virtuoso Legal, says creative businesses have borne the brunt of the internet's loose arrangement with copyright thus far. "The directive seeks to achieve a redress of this balance and make sure that creators are not losing out as much . This is vitally important as internet and digital technology becomes an increasingly powerful part of our lives. "
The Musician’s Union (MU), the trade union representing Britain’s music industry, was one of the organisations that campaigned for the new regulation. The MU called it a “real victory for musicians,” with MU national organiser for recording & broadcasting, Phil Kear, saying, “This is amazing news for the UK music industry. As a result of today’s vote there is a real chance of music rights holders finally being fairly remunerated for use of their work online.” The MU used its #LoveMusic campaign to push for the directive’s protection over artists’ copyrights.
Getty Images, similarly, was another proponent of the directive, supporting the decision as it would help protect the rights of photographers whose images appear online. Getty Images said in a statement, “Images are incredibly powerful vessels of culture, knowledge, and mutual understanding. They put faces to causes in ways that words simply cannot. We turn to images to express ourselves, to commemorate great events (personal and political), to build brands, grow campaigns, and effect change in the world. To maintain a supply of high-quality photography requires significant investment and planning, sometimes only possible if the photographer takes serious personal risks in conflict zones or sites of natural disasters. Photographers have a right to earn a living and they do this by licensing their copyright.”
The organisation argued that existing copyright law disincentivised from using licensed imagery, adding that digital platforms should have a better understanding of the content that is posted to their sites.
The statement continued, “Far from locking down content or ‘killing the internet,’ as opponents of the Copyright Directive might claim, the proposal will make more content available on a fully licensed basis, reducing legal uncertainty and removing the risk of enforcement actions being taken against individual uploaders.”
However, this does put tech companies in the driver’s seat in terms of policing content posted online. It also puts things like Google News and news aggregators under threat. The problem posed to tech and social companies is how to actually ensure that all the content posted is used with the appropriate licences and, furthermore, how to identify and remove content that is not appropriate. With an estimated 95m photos posted to Instagram each day and 300 hours of video uploaded to YouTube every minute, that makes a lot of content to sift through, identify and regulate. The EU directive puts the onus for doing so on tech firms themselves, but the tech necessary to achieve this is still incapable of doing so effectively.
Therein lies the rub for most corporate opponents of the new regulation.
Mike Shaw, partner at Marks & Clerk, an intellectual property specialist firm, says, “There is a fine line to be drawn between ensuring copyright is upheld on the one hand, and not curtailing internet freedom on the other. Whichever decision the European Parliament made was bound to upset one half of this debate. The practicalities of enforcing these new rules, and of ensuring that legitimate uses of copyrighted material – such as through parody – are not restricted, will be challenging.”
The challenge posed in terms of regulation may also result in a stifling of creativity, say some. Ryan Gracey, head of technology at employment specialist Gordons law firm, says, “For example, today’s technology cannot determine whether a post is a parody or not – that requires human intervention, which is expensive and time consuming. Platforms will likely be forced to apply blanket bans to suspicious content, potentially stifling creativity and freedom of expression.” Ward points to YouTube's firm lobbying against the directive as the means to review hundreds of thousands of hours of content are not currently feasible. "Until the web matures to handle this paradigm change, we may see a more limited form of what we have today," she says.
Another challenge is that regulation is somewhat undefined by the directive at the moment, leaving it to time to determine how the law will work in practice, Gracey says.
"The EU Copyright Directive represents a misguided attempt to regulate the internet in a way that is as detrimental to practitioners as it is to the public. Ultimately, this will hamstring aggregating websites and applications and drastically reduce the public's ability to engage properly with news and content.”
As for public relations and the wider communications industry, this presents a further challenge. The creative rights currently available online are widespread. Limiting the ways in which content can be used and disseminated may curtail the reach and effectiveness of PR and communications campaigns.
Francis Ingham, director general of the PRCA, says, “As the PR and communications industry has said time and again, link taxes and upload filters threaten the core principle of access to information. We remain deeply concerned that the supposedly-good intentions simply do not add up and that the EU Copyright Directive represents a misguided attempt to regulate the internet in a way that is as detrimental to practitioners as it is to the public. Ultimately, this will hamstring aggregating websites and applications and drastically reduce the public's ability to engage properly with news and content.”
He argues for more engagement between the public and authoritative news, but says the EU copyright directive may put that at risk.
Ward says the directive will in the first instance cause communicators to act with more caution towards the use of other people's creative work. She also advises that new platforms may emerge that are better able to monitor copyrighted content. "The new framework could impact communications professionals (e.g. new sharing guidelines or ways in which platforms change to adapt to get the most 'value' from their expense.) Watch this space. "
The long and short of it seems to be: it depends. Creative producers – the artists and musicians and developers of the world – will be better represented, recognised and remunerated for their work. However, those using content in communications or working with media, the increased need for tech and social companies to police content may impose limitations on the use and dissemination of that content, thus limiting the scope of communications.
The directive has been passed by the European Parliament Committee on Legal Affairs. It moves to the Council of the European Union on 15 April for approval. If approved, it requires each member state to pass legislation implementing it within two years.
What impact will article 11 and 13 have on businesses that rely on social media?
Andy Barr, MD and founder of 10 Yetis
The social media industry finds itself in a limbo, of sorts, trying to navigate (and some might say avoid) newly introduced legislations that will aim to “protect creativity in the digital age” and more strongly enforce copyright laws, therefore maximising the return creators can have on their content. How does this impact the realm of social media, then?
Well, businesses could now find it much more difficult to gain mass traction on generic meme or GIF posts, when Article 13 comes into play. It is easy to see why internet users are saying that the new legislation is taking all the creativity out of the internet; however, the good news is that the future of memes and GIFs is safe, for the time being. You see, it has been announced that parody content will be exempt from the rules: “Uploading memes and other content generated by users for purposes of quotation, criticism, review, caricature, parody and pastiche (like GIFs or similar) will be specifically allowed.”
The new legislation could still cause real problems for platforms that allow users to freely share content, such as Twitter, YouTube and Facebook. They could be left having to pay a massive fine if they don’t closely monitor content that is being uploaded to ensure there are no infringements on the legislation. It is hard to imagine how social media platforms will implement the new guidelines effectively, as there is no feasible way of reviewing every single piece of content that is uploaded due to the sheer number of daily posts. If there were to be a solution, it would be in the form of very expensive (and time consuming to build) AI upload systems, but it’d be difficult for them to tell the difference between someone illegally sharing a clip of a movie or sharing a funny GIF featuring a famous scene from that same film.
All that said, businesses and content creators should be looking at the new legislation and, if anything, breathing a collective sigh of relief. The responsibility for ensuring content isn’t infringing copyright laws will lie with the platform it is posted on. Although memes and GIFs are ‘safe’ for now, it isn’t hard to see a situation where platforms restrict the uploading of meme-like content to avoid the possibility of being hit with copyright fees.
Playing devil’s advocate, it will be interesting to see how the industry reacts and it may provide a breath of fresh air for the creative industry on the whole. Content creators will be forced into being more creative with the content they produce, which is never a bad thing.
A section of Article 11 that is being dubbed ‘link tax’ could leave Google with huge bills for linking out to content that in itself is infringing copyright laws. This could reduce the reach of businesses or stories hoping to go viral, which will impact the entire digital industry. This could see the end of Google news, which would be a big hit for the PR industry in particular as it could quash the reach of their stories.
In September 2018, Google released an initiative that will try and tackle fake news, which will rely on trust and authority. However, Article 11 could further complicate the report and make it difficult to implement the planned rules, if media organisations don’t have the reach through Google news.
The next step for passing this legislation is to take it to the European Council. If the council chooses to pass it, then it will take up to two years for all of the EU member states to come up with a plan to implement the new laws. We can all speculate how this might turn out, but for now at least, it’s simple a case of watch this space.