Europe’s Leaked Copyright Draft is Severely Flawed

The United States is not alone in considering changes to copyright law. The European Commission is poised to unveil its own copyright modernization directive this fall. After months of speculation, we caught a glimpse into the direction the Commission is heading — and it’s troubling.

For starters, the recently leaked draft directive would weaken safe harbors for internet intermediaries. This is particularly problematic, as safe harbors provide important protections by recognizing that internet intermediaries should not be responsible for monitoring for infringing works posted by third parties. That’s because it is often impossible for intermediaries to determine if content online is licensed, infringing, or if it is permitted under copyright law. The risk of being responsible for infringing content would be a huge burden on online intermediaries that host user content, such as YouTube, Facebook and SoundCloud. This burden would flow downstream to internet users throughout Europe who depend on the safe harbors to view, interact with and create content online.

Safe harbors also strike a necessary balance — without them the internet we know today as a place where creativity thrives would cease to exist. This would do real economic harm. The internet enables more than $8 trillion (roughly €7.2 trillion based on the current exchange rate) in e-commerce each year. Furthermore, the internet and digitization have contributed €22 billion in growth in Europe’s creative industries between 2003 and 2013.

The proposal would chill innovation for the European startup community and entrepreneurs — the opposite of the Commission’s intended effects. It would become more difficult and burdensome for preexisting internet platforms to operate. But the burden would fall hardest on European-owned businesses that would not be able to raise capital nor implement expensive content filtering solutions. Small businesses and not-for-profits like Wikipedia would also face next-to-impossible burdens because of the cost of implementing the filtering requirements and the potential liability faced should that implementation be deemed insufficient.

Another problematic provision is the granting of a new 20-year right to news publishers that would allow them to prohibit or demand payment for online uses of articles even if they do not own the underlying copyright. This will make it much harder for European users to access the reporting through online sources even when the journalists seek to encourage that access. Germany and Spain have implemented similar so-called “ancillary copyright” regimes and subsequently faced negative consequences. For example in Spain, a recent study found traffic to small publishers dropped by 14 percent and some news aggregators, including Planeta Ludico, NiagaRank, InfoAliment, and Multifriki, were forced to shut down.

The internet thrives on permissionless innovation, and unfortunately the Commission misses this. Mozilla echoed the importance of this principle while weighing in on the Commission’s anticipated copyright plans: “A key part of what makes the internet awesome is the principle of innovation without permission — that anyone, anywhere, can create and reach an audience without anyone standing in the way. But that key principle is under threat.”

The leaked proposal is simply bad policy. It’s a regressive way of looking at copyright and using government regulation in this way will only be to the detriment of Europeans. We hope the Commission will further amend the draft to ensure copyright law enables innovation and creativity to continue flourishing everywhere.