Rebalancing the Unbalanced: The EU Copyright Directive & The Journey to a More Just Universe
by Neil Turkewitz
A number of years ago, the EU, having witnessed the growing imbalance between the power and profitability of the internet platforms reliant upon providing access to creative materials on the one hand, and the creators of the content that drove those businesses on the other, realized that something needed to change. Motivated by a desire to maintain private investment in culturally diverse materials and to sustain the creative community — for the benefit of the public — they began to examine modalities for addressing the negotiating asymmetries undermining the European cultural sector. One thing became abundantly clear — the safe harbors adopted at the dawn of the commercial web had been implemented or interpreted in ways that were at odds with the intention of the legislators at the time. The active cooperation between platforms and creators had failed to adequately materialize, and platforms’ own economic interests were advanced by willful blindness and the consequent ability to monetize content regardless of legality. As such, infringement became ubiquitous and distribution quickly scaled, while efforts to address harm always lagged behind — after-the-fact and in a singular fashion. The European Commission understood that it needed to close this gap between the speed and scale of infringement, and the response thereto.
The basic challenge was to invert the incentives, and to invite platform engagement to prevent harm rather than to merely respond to it. The traditional way to achieve this would be through application of what is generally known as a duty of care — the duty to take reasonable action to prevent foreseeable harms. It’s the very premise of tort law, but a principle that had been abandoned — or contorted beyond recognition, under the internet governance principles in place in the US and EU for the past 20 years in which platforms were largely excused for their malfeasance, subject only to the need to take some responsive action once notified of the infringement. The Commission wisely understood that until it changed this basic dynamic, creators would always be playing catch-up in a rigged game in which they never could actually catch-up. Securing platform engagement prior to harm was clearly essential.
This effort was met with strong opposition from legacy actors who enjoyed a high level of “freedom” under the existing rules. And since their freedom to act without consequences and to monetize content for which they had no acquisition costs allowed them to provide services to users for free, the underlying concepts of freedom for platforms and free for users were conflated, and the existing set of rules deemed essential to “internet freedom” writ large. I have written elsewhere about the abundant contradictions underlying “internet freedom,” and I won’t repeat them here. My only observation here is to note the complexity of the toxic political environment in which European institutions were operating as they sought to effect changes to secure more meaningful engagement from platforms in addressing the infringement from which they profited.
The Directive isn’t perfect and is not the once and future solution to issues of platform responsibility and the protection of copyright in the digital age, but it takes an important step forward in establishing rules by which we improve the negotiating leverage of artists vis-a-vis any downstream user so that consent is unforced and not the product of limited choices. That, in fact, is the untold story of the failure of present copyright rules for internet commerce. It’s not that we have failed big media companies — it’s that we have failed to capture the potential of the internet to empower artists and to allow them to determine the contours of their careers. When we reform the rules so that it doesn’t take an army to enforce copyright, we expand the choices to artists.
If the European Parliament fails to adopt the Directive on Tuesday, it would represent the victory of fear over hope. Disruptive tactics employed in defense of opposition to disruption. It’s time to begin a new kind of disruption. A disruption that favors the people, and grounded in an understanding of our interconnectedness rather than a selfish declaration of independence. Europe has an opportunity to take a vital baby step in the evolution of internet governance. To reject the decontextualized and anti-social “internet freedom” that has fueled so much harm. To disrupt the disrupters. It’s time.