Social media and copyright are again on the forefront of European Union laws. In April 2019 the Council of the European Union approved the new Directive on Copyright in the Digital Single Market that includes major revisions to how third-party content can be used online, and the level of responsibility online platforms have in regulating copyright infringement by individual users. This new law, which went into effect June 7th, provides protections for copyright holders, and it has been hailed as a victory for protecting the intellectual property that is frequently stolen and misused online. The problem is, however, that this new regulation may fundamentally change social media, making it harder to legitimately use copyrighted material. (For background on E.U. copyright changes see Myers’s 2018 IPR blog post here).
The E.U. law mandates that social media sites, internet service providers, and search engines monitor potential copyright infringement, and if these entities do not monitor and remove infringing content properly, they can be held legally responsible. The law also allows for a tax on republishing third party content, dubbed the “link tax” by critics, for platforms that show third party content. In sum, the law alters the responsibility for content providers, and presents new and potentially costly penalties and taxes.
For those in the communication field the biggest issue is the new copyright regulations. While the copyright directive acknowledges exceptions to infringement for parody and other legitimate use of copyrighted material, the reality of the new law is that social media outlets, internet service providers, and search engines must screen potentially infringing copyright material and filter it out. The copyright directive does not provide a mechanism to accomplish this, but it likely requires a type of social media filter that flags and screens out potentially infringing content that is then reviewed by actual people who make the final infringement decision. The problem with this approach, however, is that these initial screens cannot make legal determinations when the copyright use is legitimate. Instead the screens would have to flag the potentially infringing content and send it for review to determine if the use of the content is prohibited, meaning that legitimate use of copyrighted material may still be subject to removal (at least initially).
Critics of the new law say it will stop the free exchange of content on social media. Memes and gifs potentially could be screened out altogether because they use well-known copyrighted material. Proponents of the law, particularly publishers and those in the music industry, say that these types of copyright protections are necessary to protect intellectual property. Because royalties are the basis for intellectual property creation, having rampant infringement on the internet disincentivizes new content creation.
This new law will take two years to fully implement. The E.U.’s new law requires individual member-countries to change their laws by June 7, 2021 to reflect this new rule. Also, as technology changes the sophistication and implementation of filters will likely take various forms in the future.
What about PR practitioners? Because digital content is a major part of current communication practice it is important for PR practitioners to keep current on this issue. There are four takeaways on how this new law effects industry.
• Content delivery in the E.U. may be slower because of screens. Even if the copyrighted content is permissible the social media screens may slow down the pace that content can be delivered.
• The E.U. regulation may affect the United States. Although this law is mandated by the E.U., it doesn’t mean that social media users in the U.S. won’t be affected. E.U. laws frequently have a ripple effect on other countries because of the economic power of the E.U. Rather than create separate experiences for U.S. users and E.U. users, social media companies may create a unified system that adheres to the stricter E.U. law for practical and economic reasons. Of course, complicating the process is Brexit, which means the United Kingdom may approach this issue differently.
• Organizations likely will have greater control over copyrighted content. One of the benefits of the new law is a greater accountability for user use of copyrighted content. Organizations who have content that they do not want to be used will have a more control over their content.
• Expect the changes to evolve over time. A big law like the copyright directive leaves the details of implementation to individual E.U. member countries and then social media organizations. Technically E.U. members countries have 24 months to pass country specific laws. Content coordinators will be responsible for creating the technological mechanism and protocols for reviewing potential infringement. Those components will be evaluated by courts only after a challenge is presented. That means that those in the communication field will need to follow how this law is implemented to fully understand its impact.
At this juncture there are many unknowns about the new E.U. copyright law. However, what we do know is this represents an increasing regulation over social media organizations, and signals that there will be a greater accountability for users and social media organizations.
Cayce Myers, Ph.D., J.D., APR is the Legal Research Editor for the Institute for Public Relations. He is an associate professor at Virginia Tech where he teaches public relations. Email him at firstname.lastname@example.org or follow him on Twitter @CayceMyers.
Directive (EU) 2019/790 of the European Parliament and of the Council 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC. 2019. Retrieved from https://eur-lex.europa.eu/.