On Sept. 12, the 751 members of the European Parliament will vote on a directive that could result in a major cultural shift on YouTube, impacting everything from Let’s Play videos to commentary and meme channels, according to those at risk.
The idea behind the Directive on Copyright in the Digital Single Market, colloquially known as the EU Copyright Directive proposal, is to instill an aggressive protection for rights holders by making the platforms hosting user content — like YouTube — liable for copyright infringement. User content will run through even more aggressive filters than YouTube’s current Content ID system, forcing platforms like YouTube to “take measures to ensure the functioning of agreements concluded with rights-holders for the use of their works,” according to the proposed directive.
If passed, the individual countries that belong to the European Union would turn the directive into laws — but no two countries’ laws would necessarily be the same, making adhering to the ruling more complicated. Those laws would also affect content owned by European license holders that circulate around the globe (e.g. anything owned by the BBC). Everything becomes increasingly more complicated when American laws — specifically those that allow companies like YouTube to operate under somewhat safe harbors — are brought into play.
Despite criticism, there is a large amount of support for the suggested rules from European publishers, networks and studios. Many rights holders argue it’s a necessary anti-piracy move, adding that the long-term benefits will outweigh the short-term consequences.
YouTube creators, internet freedom lobbyists, corporations and much of the general public say otherwise.
“If this stands out to you, you’re concerned, you’re worried — good, you should be,” YouTube creator Philip DeFranco said in a recent video, seen below. “I urge you to contact you MPs.”
“This is something we can all agree on,” meme creator Grandayy said on YouTube. “The Meme Force is united against this EU law. Join our movement.”
For creators and artists that built careers out of publishing remixed or transformative works to the online ecosystem, the directive could be a stranglehold on content owned by European companies. Doctor Who fan videos, for example, could become much harder to find if YouTube feels forced to restrict copyrighted material to avoid paying the BBC. While any laws born from the directive would only take effect in Europe, regulating companies in countries that belong to the European Union, everyone around the world would feel the ripple effect.
The fight for and against
Parliament members introduced the original proposal to overhaul the EU’s copyright rules in September 2016. It wasn’t until this past summer, however, that two specific acts, Act 11 and Act 13, caught people’s attention. Act 11 is more commonly referred to as a “link tax,” which would “force online platforms like Facebook and Google to pay news organizations before linking to their stories,” according to The Verge. Act 13, which is what specifically caught YouTube creators attention, would impose a content filter that would check every video for copyrighted content.
Since acquiring YouTube, Google has spent more than $60 million on creating, maintaining, and updating a tool that does this already: Content ID. Together with YouTube’s new Copyrights Match Tool, the fingerprinting system identifies content uploaded by users that uses copyrighted work, and finds re-uploaded versions of content on other channels. According to an announcement by YouTube executives in 2016, Content ID has identified enough misuse to pay out more than $2 billion to copyright holders.
Content ID is supposed to help major networks and studios, as well as creators producing original content, though YouTube’s filters have drawn ire from the community on several occasions due to their restrictive nature; H3H3’s year-long legal battle with YouTube creator Matt Hoss is notable, with channel creators Ethan and Hila Klein fighting Hoss over copyright issues and fair use.
But YouTube is still aware that Article 13 is an issue that could greatly affect its creator community. Robert Kyncl, chief business officer, issued a blog post ahead of the vote, asking European Parliament members to vote against the directive.
“Copyright holders have control over their content: they can use our tools to block or remove their works, or they can keep them on YouTube and earn advertising revenue,” Kyncl wrote. “In over 90 percent of cases, they choose to leave the content up. Enabling this new form of creativity and engagement with fans can lead to mass global promotion and even more revenue for the artist.”
The Content ID system and Copyrights Match Tool do an effective job of weeding out videos infringement on copyright, but there’s more at stake for Google. If the directive passes, Google would be liable for every copyright issue that pops up on its platform. Users upload more than 450 hours of video every minute, and many of those videos contain copyrighted material that is justifiable under the Freedom and Innovation Revitalizing United States Entrepreneurship Act, or FAIR USE Act, of 2007. More aggressive filters would likely disregard fair use circumstances.
YouTube’s current method of monitoring copyright infringement puts the onus of responsibility on rights holders. When the company detects a copyright issue, it sends a take down request to the user. Creators then present a counter-argument and, if the video in question is determined transformative enough, the video is re-uploaded. This happens often with memes, commentary videos, react videos, Let’s Plays series and just about most other video genres that appear on YouTube.
The new proposal would likely find YouTube implementing a more rigorous, pre-publish copyright check, which many critics assume means using a filtering system whose algorithm can’t tell the difference between transformative work and direct re-upload. User content isn’t directly at risk of disappearing, but in this scenario, a Doctor Who meme or video essay would be hit before it’s even published because it includes work that belongs to the BBC. Transformative or not, the filtering system would kill the video.
Rights holders who defend the EU Copyright Directive cite fair compensation as the main reason for their decision to back the directive. Paul McCartney, for example, published an open letter in July announcing his support for the directive.
“We need an internet that is fair and sustainable for all,” McCartney wrote. “But today some user upload content platforms refuse to compensate artists and all music creators fairly for their work, while they exploit for their own profit.”
Members of European Parliament (MEPs) like Axel Voss, a German MEP for the conservative European People’s Party, told CNBC that memes wouldn’t be affected. Voss argued that he couldn’t understand how the directive, and subsequent laws, would lead to outright content blockers.
“From my understanding, this is not leading to censor machines and upload blockers,” Voss told CNBC.
Voss believes that when public platforms like YouTube and Facebook become liable, instead of going back-and-forth with users over takedown notices, the companies will simply impose stronger filters. Critics, business executives and scholars have all knock Voss’ vague language. Holding all user-platforms liable, they say, will result in a less welcoming world for creatives to exist. An open letter signed by some of the internet’s most prominent thinkers, including Tim Berners-Lee, the inventor of the World Wide Web and Jimmy Wales, co-founder of Wikipedia, argue that the directive is too broad to effectively function.
“By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users,” the open letter reads. “We support the consideration of measures that would improve the ability for creators to receive fair remuneration for the use of their works online. But we cannot support Article 13, which would mandate Internet platforms to embed an automated infrastructure for monitoring and censorship deep into their networks.
“For the sake of the Internet’s future, we urge you to vote for the deletion of this proposal.”
Everyone believes that rights holders should receive fair remuneration for their work, as the open letter states. The main concern boils down to the most important act that has redefined everything from conversation and connection to art and news in the past two decades:the FAIR USE Act.
“The free and open internet is under threat,” top meme creator, Grandayy, said in a recent YouTube video. “Seriously this is actually much worse than the whole net neutrality issue.”
Let’s talk about fair use
Stanford Law defines fair use as “any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work … Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.”
Fair use is what allows YouTube culture as we know it to thrive.
Anthony D’Angelo, executive director of the Internet Creators Guild, told Polygon that debates over fair use and remunerating rights holders is an age-old issue for creators. His concern, as someone who oversees a body that works to protect creators and as a YouTuber, is putting the answer to a never-ending debate into the hands of politicians and lawyers, and effectively algorithms, instead of rights companies and creators.
“These are like kind of the classic intellectual property dilemmas,” D’Angelo said. “How do you balance incentivizing people making original creative work while also allowing for transformative work? That’s a really old discussion […] Do you want the governments defining what constitutes criticism, what constitutes transformative use instead of creators, rights holders and companies?
“Not everyone would trust the government to make a decision on that type of issue.”
Fair use is subjective. Some creative spaces are more lenient and forgiving with individuals using copyrighted content to create transformative works. Video games, for example, is a medium that thrives on and embraces creators using content to create videos. Let’s Plays and video essays exist because of the FAIR USE Act. Other industries, the music industry being a main contender, are far less accepting of remixed or re-imagined works.
“There is no unspoken rule right now,” D’Angelo said about copyright leniency among creative industries. “It’s really the industrial frameworks, the sort of pre-internet institutions, that are trying to make these copyright decisions.”
The first major fair use scuffle that D’Angelo can remember generating controversy was Marvin Billany’s Yu-Gi-Oh: The Abridged Series. In July 2006, not too long after YouTube launched, Billany published his watered down version of Yu-Gi-Oh, which was an unfathomably popular anime at the time. The video was removed from YouTube twice because of copyright infringement. Eventually, Billany hosted the series on his own website, but it inspired an entire new genre, which continued to exist on YouTube thanks to the FAIR USE Act.
If provisions proposed by the EU’s Copyright Directive was in place during the advent of YouTube, an entire genre of entertainment may have never existed because of aggressive filters and desires to appease rights holders. Even though the work is entirely transformative, it does exist because of leniency from rightsholders. This is what makes fair use, and overly forceful filter algorithms, such a hot topic.
“It’s one of the biggest considerations that people have when examining when people are raising a stink about this directive,” said Mona Ibrahim, a copyright lawyer who has written for Polygon previously about Fair Use. “You have to keep in mind that your standards for copyrights are, at least in certain member states like France and Germany, considerably more restrictive than what you have in the US.”
Companies like YouTube and Facebook, which are based in California, currently operate without too much legal worry under the Supreme Court’s Ninth Circuit rulings, while meme accounts, like Dolan Dark and Grandayy, can take videos and remix them to create entirely different, often short, comedic shorts. Channels like Fine Bros. Entertainment have dominated the “react video” genre, which relies entirely on aggregating original content. Even memes like You Laugh, You Lose, a popular format that many creators participate in, is only allowed because of the fair use rules.
“The algorithm for the companies have already come under a lot of scrutiny under US law,” Ibrahim said. “So companies have to tread very carefully. They basically have US law, which says you need to have a reasonable fair use analysis before you can take these materials down, and on the other hand you have the EU saying you need to implement these algorithms that automate the takedown process. Companies are like, ‘How do we do both?’ It goes beyond what companies really have the means or interest in providing. What this ultimately puts at risk is the platform’s ability to enable user generated content. Also, for smaller companies and smaller systems that rely on those platforms, they also have to take any consideration what they can and can’t do.”
One of the biggest concerns that people like Ibrahim and D’Angelo have about the proposal is potential misuse and abuse by people who weaponize copyright claims. Using copyright claims as a form of attack — a way to protest a video because of issues with the creator or because rights holders don’t like how the material is being used — is a major faux pas in creator culture. That doesn’t stop people from abusing copyright claim takedowns. It’s become the source of highly contested debates between popular creators, and an issue video essayists and movie critics take seriously when companies — like Universal — issue copyright claims on videos that are clearly fine under the FAIR USE Act.
“We see this time and time again; it’s really well documented. Large copyright holders, even small ones who really don’t own the content at all, somehow sidestep whatever checks are in place, and apply a copyright claim or a content strike,” D’Angelo said. “They take the ad revenue from the video in question, and all without ever having anything to do with the content itself like that. That is a huge issue.”
Ibrahim agrees, adding that there aren’t any current consequences for companies or individuals who file copyright claims for works they don’t actually own. This happens so often that there are Google forums dedicated to wrongful copyright takedown requests. YouTube’s Content ID isn’t perfect; it’s up to the video’s owner to fight the claim, often wait two or three days to hear back, and hope for the best. Groups like Global World Entertainment and CollabDRM, companies that issue copyright takedowns for major corporations and content owners, are notorious for flagging videos that don’t actually contain copyrighted material. Creators aren’t protected from this, and companies can’t get in trouble for doing so. Ibrahim wants to see that changed.
“I personally think that not criminalizing or not penalizing companies that falsely laid claim to public works or works in the public domain or owned by other parties should be penalized,” Ibrahim said.
The EU Copyright Directive doesn’t have any stipulations for holding companies accountable, an issue that critics are calling out. Not only will the algorithms used to filter videos with copyrighted material increase censorship, according to some, but not faulting companies for flagging other videos as infringing on copyright will also affect the creator space.
“Those wrongful copyright cases are particularly frustrating because it’s an engineered solution,” D’Angelo said. “Inherently, there are going to be holes in whatever engineered solution is applied. We’re sort of choosing, ‘Do we want governments and courts to arbitrate in disputes between independent concentrators and copyright holders, or do we want the tech companies themselves to do it?’ They’d basically be an extra filter between the dispute elevating.”
While tech companies will still work with rights holders and independent content creators, the internet’s legacy of leniency will vanish as companies change to protect their sole interest: themselves. It’s why people like Mike Morel, campaigns manager for the Open Rights Group, are asking the European Union to vote against the directive and find a better route.
“We’re certainly not against musicians [or artists] getting paid,” Morel said. “I mean, I’m a musician myself. No, that’s not it at all. It’s just that this particular tactic seemed extreme, and it’s definitely got major threats to a fundamental right of speech online. A different plan has to happen. It’s just too extreme right now.”
Time to vote
The European Parliament will come together on Wednesday, Sept. 12 to vote either in favor of or against the Copyright Directive.
There are groups who are lobbying behind the directive, including some of the biggest superstars and celebrities in the world, and there are lobbyists and proponents of a fair, free internet are on the other side, begging Members of European Parliament to think of the internet’s cultural future before voting. Each faction has presented their arguments, and is just as passionate about this directive either being passed or knocked down again.
Ibrahim said it’s “hard to say” whether the directive will pass, especially considering it’s failed twice before, but anything is possible. Still, she argued, the EU has long fought for a free internet, adding that critics have made enough noise for people to take notice.
“The EU has been really good about shutting down these kinds of directives and proposals in the past because the EU has very much been a safe or a free and open internet,” Ibrahim said.
Morel agreed, but he wanted to stress one very important facet to this vote: the EU Copyright Directive isn’t just a European issue. Nothing that concerns the daily ongoings, and future innovations of the internet is localized. This is an issue that affects everyone around the world, especially as more people begin to make their homes online. To forget that aspect or, even worse, to ignore it, does a disservice to the web’s very core foundation.
“The internet doesn’t respect borders, so it becomes more complicated and troublesome because the ramifications are global.”