Despite the EU’s failure to pass its controversial Directive on Copyright in the Digital Single Market earlier this summer, the Directive is likely to be voted on again in the coming months.
In addition to Article 11, the “link tax,” which would require sites to pay content producers for quoted content (a policy that, when introduced in Spain, forced Google News to shut down in the country due to the compliance costs), Article 13 would require content hosts to screen all user-uploaded content for copyright infringement.
Many called this latter provision “the death of the meme.” In addition to shifting the burden of screening for infringement to hosts from those whose copyright may be infringed, the policy will be hard to execute without collateral damage: Many content screens aren’t particularly effective because they produce a great many false positives, flagging content as copyright infringement when it either isn’t or when it falls in the protected category of parody (as most memes do).
One German music professor offers further evidence of the shortcomings of content screening. According to Karl Bode, writing for Motherboard,
German music professor Ulrich Kaiser this week wrote about a troubling experiment he ran on YouTube. As a music theory teacher, Kaiser routinely works to catalog a collection of public domain recordings he maintains online in order to teach his students about Beethoven and other classical music composers.
The first video Kaiser posted online simply explained his efforts to provide digitized copies of public domain recordings to students, with some of the music in question playing in the background. But within three minutes of being posted online, YouTube’s Content ID system had flagged the music for a copyright violation — despite no copyright actually being violated …
“I quickly received Content ID notifications for copyright-free music by Bartok, Schubert, Puccini, and Wagner,” Kaiser said. “Again and again, YouTube told me that I was violating the copyright of these long-dead composers, despite all of my uploads existing in the public domain.”
In addition to a great many false positives, Professor Kaiser’s attempts to appeal the flagging resulted in a frustrating and time-consuming process to get the music restored.
Kaiser appealed each takedown request, noting that the composers of the works had been dead for more than seventy years, the recordings were published before 1963 (which under German law means they were now in the public domain), and that the takedown requests failed to provide any solid legal justification for their removal.
But Kaiser only received more takedown requests, and found Google’s support systems unhelpful. Only after some lengthy, cumbersome exchanges was Kaiser able to have many of his videos restored, but not under the free license he had hoped would allow them to be easily shared.
This should give even those most hawkish on intellectual property pause. Owners of copyright already have the ability to flag infringing content, but Article 13 would place the burden on sites that receive countless user uploads every day and require the use of software that prevents perfectly legal content from being posted.