The European Union’s New Copyright Directive: Article 17

2020 will see a lot of changes in the legal landscape.  From privacy to data regulation, 2020 will continue the previous changes in law as well as bring forth many new ones.  When the European Union passed Article 13, later known as Article 17 of the Directive on Copyrights, there was much talk about whether or not the United States would follow suit.  So far, the United States has not, but the start of 2020 raises the specters of the Article 13/17 debate again.

Does Article 17 Meet the Objectives Sought?

The European Union has often set the example when it comes to protecting users’ personal information and setting standards for privacy laws and regulation.  While the European Union’s passage of the General Data Protection Regulation was historical and groundbreaking, its passage of Article 17, which was previously known as Article 13, has been much less well-received.

Unlike the General Data Protection Regulation, Article 17 has been widely criticized by experts, and many even go as far as to say that Article 17, as drafted, fails to meet its stated objectives.  Instead, experts warn that Article 17 is likely to have a chilling effect on content creation on the Internet because it provides too broad of a definition of copyright infringement, opening up many content creators to potential lawsuits and claims of liability.

The Effect of Liability and Safe Harbors with Article 17

Article 17’s main teeth come from its complete removal of limitations on liability for many online platforms.  Under Article 17, platforms such as YouTube, which hosts many famous content creators, can be held directly liable for copyright infringements committed by their users.  Article 17 also makes companies applying for safe harbors have to jump through several more hoops.

Under the legislation of Article 17, for-profit platforms such as YouTube would not only have to remove the copyrighted material at issue, but they would also have to make best efforts to get a license; attempt to block uploads of copyrighted materials; and attempt to block any upload of previously contested material.

As technology giants currently rely on automated filters to do the heavy lifting when it comes to removing copyrighted content, these new standards set by Article 17 could be quite costly for the aforementioned for-profit platforms.  As such, experts predict that, while technology giants such as YouTube may be able to weather such requirements, smaller operators will likely be crushed under the weight of fines or budget for such policing.

Key Takeaways about the EU’s Article 17

 The idea that the European Union’s Article 17 may be replicated or extended to the United States has many experts worried.  Some critics believe that Article 17 would be damaging because:

• it could have a chilling effect on original content creation;

• put a significant burden and onus on smaller platforms that host such content; and

• increase costs to users that use for-profit platforms such as YouTube, because such social media platforms may pass the costs of policing onto its users.

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