As of April 15th, the European Union officially approved a controversial new Copyright Directive that has left members of the art and tech worlds fiercely divided. The Directive, which was narrowly approved by the European Parliament in a 348 to 274 vote last month, has now been given the green light by 19 out of the 28 EU member states, which leaves EU members with 24 months to comply with the new measure.
Under fire is Article 17 of the Directive (previously referred to as Article 13), which renders platforms like YouTube, Facebook, and Instagram liable for the misuse of any copyrighted material that users upload to their sites. As liability shifts from individual users to the tech giants themselves, platforms will need to either buy licenses to the copyrighted content, remove the content entirely, or prevent copyrighted material from being posted in the first place. Prominent artists like Paul McCartney and Björn Ulvaeus are in support of the Directive, asserting that YouTube and its peers are unfairly profiting off of creative labor it has not paid for, feeding a cycle of IP theft. To put this complaint into context, a user may currently upload a video with an unauthorized background song. users flock to the video, platforms profit from the increased traffic generated by the appropriated content. while the artist, who bears the onus of reporting the infringement, receives nothing.
Though the Directive may seem like a much-needed response to artistic exploitation, platform spokespersons, emerging artists, and notable tech figures like Jimmy Wales and Tim Berners-Lee are more concerned about its chilling effect on creative expression. This concern is not unfounded. The Directive will almost inevitably cause platforms to utilize automatic filters to police new uploads—filters that are notoriously ill-equipped to discern between fair use and infringing content (take YouTube’s $100 million dollar Content ID system as an example). This means that derivative art forms such as memes, parodies, and music mixes could be under threat—a fear which is particularly relevant in the internet age, where creative appropriation is not only commonplace, but celebrated.
In addition to the censorship issue, the Directive may further aggravate the divide between prominent artists and those struggling to make a name for themselves in the industry. As YouTube CEO Susan Wojcicki points out, platforms may not have the financial and technological resources available to comply with the Directive’s provisions; consequently, they may end up limiting content providers to a select number of large, vetted companies because smaller, individual providers are too difficult to monitor effectively. This would only further the already powerful monopoly that brand-name artists have over the creative industry, making it even more difficult for rising artists to gain exposure for their work.
Not only does the Directive spell out issues for artists, it also means trouble for the platform managers. Because the EU requires each nation adopting the Directive to formulate its own unique interpretation of the measure’s language—which critics call “maddeningly vague” — tech companies may have to devote resources to develop customized mechanisms and procedures to fit numerous regulatory regimes. As “#SaveYourInternet” protests carry on in Berlin, Poland, Austria, and Portugal, questions remain: who is the biggest loser here, the artists or the platforms, and is the Directive championing creativity, or destroying it?
Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).