After the European Directive on Copyright in the Digital Single Market passed late this summer, large tech companies are trying to figure out how to comply with the Directive’s many restrictions, including the particularly onerous mandatory copyright screening content filters included in Article 13.
The copyright filter mandated by Article 13 would place the burden on content hosts (websites where users upload content, such as Wikipedia or YouTube) to screen all uploaded content for potential copyright infringement.
There are countless problems with this regulation, including the fact that such filters are often unreliable, producing many false positives. On top of that, confusion over who owns the rights to content makes the regulation impracticable, as YouTube CEO Susan Wojcicki said:
While we support the goals of article 13, the European Parliament’s current proposal will create unintended consequences that will have a profound impact on the livelihoods of hundreds of thousands of people.
The parliament’s approach is unrealistic in many cases because copyright owners often disagree over who owns what rights. If the owners cannot agree, it is impossible to expect the open platforms that host this content to make the correct rights decisions.
Take the global music hit “Despacito”. This video contains multiple copyrights, ranging from sound recording to publishing rights. Although YouTube has agreements with multiple entities to license and pay for the video, some of the rights holders remain unknown. That uncertainty means we might have to block videos like this to avoid liability under article 13. Multiply that risk with the scale of YouTube, where more than 400 hours of video are uploaded every minute, and the potential liabilities could be so large that no company could take on such a financial risk.
On top of the exorbitant cost associated with content filters (as of 2016, YouTube invested $60 million into its content ID system) Wojcicki’s point about the difficulty of enforcement is spot on.
Even if the rightsholder to a work can’t be identified (making the content an “orphan work”), the copyright doesn’t go away. A content host could be sitting on a legal time bomb, making content that nobody is claiming the rights to a potential liability.