Last week Politico published a leaked draft of the Commission’s forthcoming communication on Online Platforms in the Digital Single Market. As the the title suggests, this is another piece of the puzzle in the Commission’s attempt to create a European Digital Single Market. While it does not directly deal with copyright issues, the document discusses important implications for the future of copyright in the EU (and beyond).
According to the Commission, the communication takes into account the input the Commission already received in response to last year’s consultation on the ‘Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy’. Back in November—when we urged our readers to reply to that consultation—we pointed out that the Commission was:
… considering measures including the introduction of an ancillary copyright for press publishers (link tax), limitations of the right to link and modifications of the liability limitation for hosting providers.
The leaked draft confirms these expectations—at least in part. It contains language that seems to be intended to undermine the existing liability limitations for hosting providers. In addition, it makes thinly-veiled references to an introduction of an ancillary copyright (which of course fits right in with the recently released consultation on such a right).
An attack on intermediary liability is an attack on the open internet.
With regard to copyright, the most interesting part of the communication is the section titled ‘Ensuring that online platforms react responsibly’. In this section, the Commission seems to praise the existing intermediary liability regime:
Although the present Intermediary liability regime, as set out in the e-Commerce directive, was designed at a time when online platforms did not have the scale they have today, it created a regulatory environment that has considerably facilitated their scaling up. This is in part due to the harmonisation of the exemption of all types of online platforms from liability for illegal content and activities that they do not control. The public consultation showed strong support for the existing principles of the e-Commerce directive, but also the need to clarify certain concepts, including the scope of the safe harbour for intermediary liability, including for online platforms. Given this background the commission intends to preserve the existing liability regime.
Unfortunately, the Commission wants to say one thing and do another. About half a page later the the Commission observes that…
New forms of content distribution have emerged […] where, for example, content is distributed through platforms which make available copyright protected content uploaded by end-users. While these services are attracting a growing audience and gain economic benefits from the content distribution there is a growing concern as to whether the value generated by some of these new forms of online content distribution is shared in a fair manner between distributors and rights holders.
But as our friends at EDRi have pointed out, the statement characterizing platforms as actively “making available” content uploaded by end-users is a telling deviation from how these types of intermediaries have been treated so far. “Making available” would be considered to be a activity under the control of platforms, and as such it would not covered by the exemptions of the E-Commerce directive, which limits platform liability for passive acts such as hosting user uploaded content. The Commission’s wording is likely deliberate. It would establish that content sharing platforms are not covered by the liability exemption, and would give rights-holders additional leverage when negotiating licensing arrangements with covered platforms.
While this may be a desired outcome for the Commission in its attempts to ensure a “fair distribution” of value, it undermines the fundamental framework under which online platforms may operate as open publishing channels that are offered to all internet users. Faced with relentless pressure from rights-holders to address a self-identified value gap, the Commission seems to be willing to throw out the baby with the bathwater.
Introducing liability for content that is being shared by end-users will very likely mean an end to the open character of these platforms. This is because under new rules the platforms will have a strong incentive to proactively filter out any content for which they could be held liable (or which they do not like). This not only limits users’ freedom of expression, but also means that platforms operating in Europe will be much a much less vibrant place. What sets social media and content sharing platforms apart from traditional publishing platforms is that they do not restrict the the ability of internet users to express themselves. Remixes and memes thrive on these platforms because there are no copyright gatekeepers who would undoubtedly reject a majority of such creative expressions because of the liability that would come with allowing such content on their platforms. As a result, everybody will lose, including European entrepreneurs who will have a more difficult time developing competitive platforms.
Putting publishers back into control.
Unfortunately, questioning the existing liability limitations of the E-Commerce Directive is not the only expansion of copyright that the Commission has in mind. The same section of the leaked draft also announces that…
in the next copyright package, to be adopted in the autumn 2016, the commission will aim at ensuring fair allocation of the value generated by online distribution of copyright-protected content by online platforms whose businesses are based on the provision of access to copyright protected content.
This is a sweeping statement, given that almost all end-user facing platforms “are based on the provision of access to copyright protected content” in some way or another. In addition, the statement implies that the current allocation of value is not fair, and that it is possible for the Commission to somehow determine what constitutes a fair distribution of value. While the language of the draft consultation seems deliberately vague in this instance, one does not need to be an analytical genius to understand that it is intended to provide a justification for the introduction of additional copyrights for publishers.
Seen in this light, the ongoing review of the EU copyright framework in service of fostering a digital single market starts to look less and less like an attempt to modernize copyright so it better aligns with the technological, social, and cultural opportunities created by the web. Instead, it looks more and more like a not-so-secret attempt to force the internet to conform with traditional models of content distribution, in which control is centralized within a small group of publishers and other intermediaries.