Copyright and freedom of expression in the Internet Age

Personas alrededor de una parada de libros en la calle

The European Union has tabled a new directive on copyright to harmonize different aspects of the European digital market. Its most controversial aspect is Article 13, which obliges Internet service providers to apply general filters to their contents to scrutinise works protected by copyright. The aim of that article is to ensure a balance between protection of rightholders and safeguarding of the exercise of fundamental rights such as freedom of expression and creation by Internet users. We have compiled diverse points of view on that legal conflict.

The directive proposed by the EU forms part of a series of measures promised by the European Commission to address the digitalisation of the world economy, where the Internet has become the backbone of economic systems. One of the aims of the measures proposed by Jean-Claude Juncker is “to enhance legal certainty so that researchers and schools will make greater use of copyright materials”, in other words to secure the boundaries protecting fundamental rights of public interest. The text of the directive, however, if we are to judge by the tremendous debate that it has sparked, does not appear to live up to the expectations that it has created. Representatives of the digital and cultural markets, jurists, theorists and activists set out below their views on this subject.

Javier Díaz de Olarte. Legal Director of the Spanish Reprographic Rights Centre (CEDRO)

The debate does not actually concern web neutrality or freedom of expression. The aim of this directive is to attain regulation that, on the one hand, allows the development of new digital business models and, on the other hand, ensures proper and effective protection for holders of intellectual property rights. We must be aware that, in many instances, those business models are based upon the massive use of third-party services and works that are often, in turn, the result of the creative and industrial activities of authors, artists, editors, producers and, ultimately, business models that are equally deserving of recognition and protection. It does not seem logical or fair that certain businesses should develop at the expense of the activities and efforts of others. We need to bear in mind how important cultural industries are within the context of the European Union, whether in terms of numbers of jobs or contribution to GDP, or in terms of social, educational and cultural development.

It seems reasonable that the parties affected by those business models, which are likewise digital in many cases, should not be in favour their development if it is at the expense of other people’s work. It is not so much a question of the use of third-party services or works, but rather that, when such services or works are used, their owners should receive a fair share of the profits obtained.

Simona Levi. Activist, founder of Xnet

The definition of what is meant to be defended under the new European directive on copyright on the Internet is erroneous, since its aim is not the protection of authors, but the protection of the large copyright monopolies. On the contrary, we believe that it is possible to defend authors and a free Internet at the same time.

The regulation proposes creation of a utopian filter to rule out any possibility of infringement. Avoiding infringements through that mechanism is prior censorship and is characteristic of authoritarian legislation. It is the same as blaming automobile dealers for bad road manners or speeding. You do not solve the problem of copyright by suppressing the messenger. You are shifting responsibility to the intermediaries, all the while knowing that the intermediaries, who then have the obligation of filtering, cannot verify if something is actually an infringement. We frighten the intermediary into refraining from publishing anything that might give rise to a conflict. It is all based upon legal doctrine that is more appropriate to authoritarian regimes.

The Internet has boosted freedom of expression and multiplied the number of people with a voice. Power has been devolved. This is a threat to the status quo, but we cannot wipe out freedom of expression to go back to the prior situation. The European regulation will not allow artists to make a living from their work or foster better culture. Any MEPs who wish to defend innovation and fundamental rights cannot accept Articles 11 and 13 of this directive.

The position taken by the European Parliament is crucial, because following the vote a dialogue will be opened again among the Parliament, the European Commission and the Council. If the Parliament fails to make a pro-citizen statement, then we will have a problem, because both the Council and the Commission are heavily influenced by lobbies. By the end of 2018, we could have a final draft.

Mayo Fuster. Activist and social researcher. Member of the editorial board of Barcelona Metròpolis

The Internet is generating a new sort of authorship, one that is hybrid and collective. The collaborative creation fostered by the web has overflowed the bounds that had defined the scope of copyright.

We need modes that are more flexible in respect of the commercial uses of works and the rights to the derivative works. Programs that allow creation of subsequent works from the mixture of formats are giving rise to new forms of creativity. It should be licit to reuse or quote other works freely if it is not for commercial purposes.

The Internet has strongly democratised access to culture. It is now easier to find people with similar interests who are ready to cooperate and spread knowledge. Wikipedia is a good example. New economic models are emerging that support the possibility of free culture. Crowdfunding, subscription, premium services, and so on, can all help to adapt the economic model to the production process. All in all, what is needed is a new global governance for the Internet that favours general interests. The Internet is the first channel to have been developed outside public control and it has favoured freedom of expression, but over time the centralization of economic power has neutralized that freedom. Collaborative production is accomplished on platforms that always depend upon a central server, and this creates a source of power, because whoever controls the server has control of the whole process. A great deal of trust is being placed in the blockchain, a technology that could decentralise governance, but we should not be naïve. The Internet is teaching us a lesson that must make us think: it is a space that has become concentrated in just a few years and it has ended up being controlled by just a very few businesses.

Diego Naranjo. Senior Policy Advisor, European Digital Rights (EDRi)

In response to a number of public enquiries, the European Commission decided two years ago to modernise copyright regulations. It ended up, however, producing a shoddy patchwork catering to certain industry demands, with Article 11 (a press publication royalty for all Europe) for the Axel Springer corporate group and Article 13 (proposal for content filters or “censorship machine”) for the music industry.

In the latter case, the argument ran that there is value gap between the amounts that certain platforms pay to rightholders (mostly large corporations) and what they ought to be earning. The recording and music industries maintained, for example, that Google decided voluntarily to pay them a more or less arbitrary amount in connection with which they had no bargaining power. Whether that is true or not, reports for the last two years show that earnings in the music industry are higher than ever and that artists continue to earn very little. It is incomprehensible that the solution to a problem that is one of competition and not of copyright should be sought through copyright legislation and by means of filters for all types of content (audio, text, video, memes …) uploaded to the web.

As we have seen repeatedly, content filters create a wide array of problems for freedom of expression, due to the fact that they are unable to distinguish exceptions to copyright, contexts of parody or even content not protected by copyright. Even so, the Commission and the rapporteur for the directive to the European Parliament, Axel Voss (Germany, European People’s Party) have asserted that filtering all manner of content on the Internet does not involve a general obligation for monitoring (which is prohibited under the e-Commerce Directive), since only certain specific files are sought. A number of academics have stated that that is absurd, but for the time being, the stance is that filtering the Internet is the only way to protect rightholders (authors and copyright management companies, rightly known in English as “collecting societies”).

Even if we concede that artists earn very little from their work and that different intermediaries (record companies, digital platforms …) may not pay them what they deserve, that situation will not be remedied by means of a content filter for all platforms. There are various possible solutions (appeals to competition courts or the obligation for all streaming platforms to pay for licenses at a price that is fair for everyone involved), but those solutions do include a content filter that will violate fundamental rights and that the creator of the World Wide Web himself has denounced.

Daniel Fernández. Chairman, Spanish Federation of Publishers Associations and Spanish Book Association

EU regulations are extremely complex, due to the fact that the Union is a relative entity in political terms and based upon consensus. Relying upon the need to enforce compliance with copyright, the discussion has veered to a debate on freedom of expression framed in terms that betray it, because freedom is by definition immune to control.

This directive is the outcome of an attempt to adapt the umbrella of the Berne Convention (which has regulated the relationship between authors and publishers for decades) to the Internet Age. Most of us publishers believe that it is a timid regulation, one that is less than determined and no cause for celebration, and, furthermore, it has provoked a tremendous reaction on the part of Internet activists. This is similar to what occurs with the Robert Louis Stevenson novel Treasure Island, since most readers sympathise with the pirate Long John Silver rather than with Squire Trelawney, but I have nothing good to say about pirates.

The new Internet Age is dominated by a gigantic oligopoly, in the hands of a very few US-based companies with a proven bent for avoiding taxes, to whom we have furthermore made a gift of our data. Europe must defend its legal framework for protection of intellectual rights with the same conviction as it brings to bear in defence of its welfare state.

The publishing industry will have to recite its mea culpa, since it has stubbornly insisted on putting up resistance rather than proposing solutions. Digital books offer the opportunity of selling books for lower prices, but the digital market will only attain real growth when it can offer subscriptions with access to a substantial body of works. Netflix is a good example, and a few incipient initiatives are cropping up in the world of publishing. They will succeed when it becomes easier to subscribe than to pirate books.

Luis Elías. General Secretary, Planeta Group

The new regulation is meant to close a number of loopholes in the existing legislation. The Internet would be of no use if creators, editors, writers, scientists, authors and artists did not believe in it and contributed their contents there. Most of those who are not authors in the broadest sense of the term (publishers, producers, artists, writers, etc.) consider freedom of expression to be the supreme freedom, to which all other freedoms must be subordinate, while ignoring the fact that if there was nothing to express, if there was no content, that freedom of expression would not exist. They justify the improper use of others’ property (i.e. intellectual property) with the excuse of freedom of expression. Their defenders on the Internet do not seem to understand the concept of property. A work belongs to its creator, and that principle must be respected.

Until now, Internet portals known to everyone have applied the system of the take-down notice, in other words the owner of the intellectual property right had to make the effort of watching out for any improper use of their property, any illegal use, and then complain. The portal would then withdraw that content, but the violator (inaccurately called a pirate, i.e. a thief) would then post it again, making the owner’s efforts useless, while the inaccurately named pirate and the portal itself continued, improperly and with total impunity, to make important sums of money, in some cases amounting to millions, through the use of sophisticated technology with absolute opacity that prevented them from being caught.

The portals that are aware of these irregularities and that repeatedly include advertising on those illegal websites should be considered, sooner or later, full accomplices.

We all subscribe to the idea that the Internet should be neutral. We cannot, however, maintain that attitude of neutrality when the rights of third parties are violated and illegal acts are committed.

Ignasi Labastida. Head of the Research Unit of the Learning and Research Resources Centre (CRAI) and of the Creative Commons in Spain

They have been trying for years now to use copyright to solve problems relating to author’s rights that have nothing to do with intellectual property. The problem is not Internet, but rather the fact that some business models have become obsolete, and some believe that by setting up more barriers they can recover their lost income. The failure of the famous Google Tax showed that Google News was not the cause the crisis in the press. The closure of Menéame has demonstrated that worthwhile initiatives can be thwarted if action is pursued solely taking into account a given business model. If Google is abusive, then we need to find a realistic solution, instead of breaking down the law on intellectual property.

Upon reading the first drafts of the European directive, it was obvious that the aim was to recover income that was lost with the penalisation of Google. It is true that Google takes unfair advantage, but we need to broaden the scope of our solutions. It would be more effective to have Google pay taxes like everyone else than to oblige it filter its contents, a situation that will make it into a self-censorship machine. Google has the technological capacity to filter, but the Internet is rife with other platforms, such as Wikipedia, that may lack the technology to implement such filtering. We stand to lose a lot along the way.

What is happening in the world of publishing? You cannot go on selling books as you did ten years ago. Now we see that if it were easy enough to gain access to a substantial body of books for a reasonable price, many people would be willing to subscribe to the service, as they have with Netflix and Spotify. We need to assign a new value to this product, but publishers have yet to set up the infrastructure that a university library would need in order to purchase a book and make it available on loan.

Pedro Letai. Attorney for the Spanish Collecting Society (SGAE)

At the SGAE, we see the directive as an opportunity to protect creators, who are the authors and owners of a very high proportion of the contents that we enjoy and exchange via the Internet. This is an opportunity to level the playing field and adapt it to the prevailing circumstances, especially now that technological platforms have appeared with a business model that consists of disseminating and monetising those contents without remunerating their authors fairly, platforms with a business model based on free access that are later launched on stock markets at high prices.

The filters proposed in the directive will be applied with the necessary flexibility. The regulations governing intellectual property distinguish at all times whether or not a work is reproduced for profit, and they have always provided for exceptions for the use of others’ works, which are not taxed in the case of a quotation (Article 32) or a parody (Article 39).

Our members sign a management contract with us and we grant licenses to all users who wish to make use of the contents. On that basis, the rate charged is proportional to the importance of the content for the specific business model. Making use of a song at a hairdresser’s is not the same as making use of it at a discotheque.

Depending on the nature of the contract, the SGAE is obliged to detect the public use of any work, regardless of how that use is accomplished. We have to apply the rate, charge it and, most importantly, distribute it. The author will then be entitled to make use of the profits freely as they see fit.

Eva Sòria. Attorney and copyright researcher. Visual Arts Co-ordinator at the Ramon Llull Institute

The proposed directive fails to establish clear regulations to determine when Internet users can copy and transform protected works to create their own works. The outcome of that failure will be a limitation on the freedom of expression of Internet users and the legal uncertainty that may arise in respect of user generated content (UGC). UGC is a work produced by an Internet user exploiting another work (i.e. exercising at least two of the pertinent exclusive rights, namely copying and public communication) and making it available to the public through platforms such as YouTube, Wikipedia, Facebook, Twitter or Instagram, often with no aim other than communicating with friends and racking up a large number of likes.

The UGC on platforms such as Twitter, Wikipedia and YouTube could be seriously compromised. Internet service providers would be obliged to ensure that no user of those platforms was able to include in the contents that they post on the web any sort of material protected by intellectual property law. This could involve serious obstacles for different uses of the Internet, from Wikipedia itself to a home video of an infant dancing to song by Prince, or a video taken by a visitor to the Venice Biennale showing the works that impressed them the most.

The main problem with the directive and in particular with its Article 13 is that it is based upon the premise that every unauthorised use of works with copyright protection causes harm to the rightholders. This makes copyright law an intractable and abusive law that can only be mitigated through its generalised transgression.

Abel Garriga. Attorney and specialist on intellectual property

The dilemma of intellectual property and freedom of expression exists, but the law cannot establish that one right will always prevail a priori over the other. Rather, concerns must be weighted in view of the specific circumstances. The same occurs with the dilemma of the right to privacy and the right to information.

Technological progress has changed the status quo and the way in which intangibles, such as culture, are produced and consumed. In the analogue world, power lay with whoever could produce and distribute cultural goods. The digital media have changed everything, beginning with the intermediaries, who are increasingly fewer in number and more powerful. We are living in seminal, revolutionary times that will mark the turning point between before and after. This has reshuffled the balance of power, but this phenomenon cannot be counteracted merely through legislation.

The filters that could theoretically affect the neutrality of the web are already being implemented. YouTube will not let you upload certain songs if they are protected, but the fact is that establishing a generic filter that does not distinguish between size and power could be counterproductive for the development of Internet businesses.

It is curious to note that enterprises that until just recently were mere operators are now becoming producers of contents. If they were formerly interested above all in fostering the consumption of data, now they watching out for the intellectual property of those contents. They are switching sides.