19 September 2019CopyrightSaman Javed

AIPPI World Congress 2019: the challenges of article 17

Earlier this year, the EU adopted its new copyright directive. Two articles in particular—articles 15 and 17—were met with significant criticism. Article 17 was the subject of a panel discussion at the AIPPI World Congr ess 2019 yesterday, September 18.

Article 17 attempts to address the problem of copyright infringement that occurs on certain internet platforms, such as Facebook and YouTube, as explained by Christina Angelopoulos, a lecturer in IP law at the University of Cambridge.

“It attempts to remedy the problem by clarifying and reinterpreting the concept of communication to the public, where the relevant platforms allow users to upload content that the public can access,” she said.

Under the terms of the article, the platform must make “best efforts” to obtain authorisation from copyright owners for the content on their websites and prevent future uploads of infringing content.

“The concept of best efforts in itself has an inherent murkiness,” she said. This could mean anything from disabling access to the platform, removing the content from the websites or taking infringement action against those who upload the content.

The article also raises questions of whether the platforms themselves can be held responsible for ensuring that infringing work is not available on their platform.

“Critics pointed out that search monitoring would put monitoring obligations on the platforms, but it’s not clear if article 17 imposes this,” she said.

“While some language of the provision may suggest so, the article also clearly says that ‘the application of this article shall not lead to a general monitoring obligation’,” Angelopoulos added.

Cédric Manara, head of copyright at Google, speaking on his own behalf, said that from the search engine’s perspective “the text is really clear in that it if it’s one platform that is impacted, it’s YouTube”, which is owned by Google.

The goal of the article, he said, is to have platforms take licences for the content they host.

“But on YouTube, we do already have licences,” he said, adding that since it began taking licences for music, the platform has paid approximately 2.7 billion to the music industry worldwide.

This article may complicate the platform’s existing model.

Manara took the example of a still from a music video posted on YouTube. While the platform has a licence for the song and video from the publisher, in the background of the video an art mural is clearly visible.

“What the article throws up is: do we need to licence more stuff than just the music? Should we have taken ‘best efforts’ to licence not just the music world but also from mural artists?” Manara asked.

“And then in the scenario that we didn’t seek a licence on that mural, what should we do when that artist comes to us and complains? Do we then remove the video, or just remove that portion of the video?”

“This is how we want to understand the scope of best efforts and what this actually means,” he said.

Additionally, Manara said the article is in danger of placing all of the liability on platforms.

“I don’t see how corporations can reach the goal of article 17 if the onus is solely on us,” he said, adding that there needs to be cooperation and a shared liability among platforms, rights owners and users.

Human rights

Angelopoulos pointed out that there is also a significant human rights dimension to this topic: the right to freedom of expression.

This is because the technical tools that would be required for monitoring content are not sophisticated enough to be able to distinguish between legal and illegal content.

This means that when infringing content is taken down, non-infringing content could also be confused as being infringing and removed.

“While the article says this should not happen, it remains to be seen whether this is feasible or just wishful thinking,” she said.

This is also the main concern of the Polish government, which has filed a challenge against the article. Poland argues that article 17 makes it necessary for providers to apply filter technology which undermine the freedom of expression.

There are also practical difficulties arising from article 17, which Sophie Goossens, counsel at Reed Smith, said may impact creatives, especially those just starting out.

“The weakness of the directive is that when you have creatives using platforms such as YouTube, Facebook etc to build their careers, they don’t yet have the professionalism to help them navigate the complexities of the licensing market,” she said.

Goossens added: “While the directive requires that online content-sharing platforms must obtain a licence from a rights owner for all works, it is unclear how this will play out.”

Goossens predicts that it will go one of two ways: the platform will obtain a licence which makes it liable for any content its users upload or it does not take out licences and the liability falls on the user.

Tara Sherbrooke, vice president and general counsel at copyright licensing company ICE, said that from her perspective article 17 is “a real win, no question”.

“This has given us certainty on liability and that online service providers must take greater responsibility for content they host, because the rights owners have worked very hard for that,” she said.

But she also took issue with language used in the article, which says platforms must implement “effective technical measures and high industry standards” to police content.

Sherbrooke concluded: “It remains to be seen whether platforms will seek to pass on this liability to creators and users.”

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