2018 has certainly refocused the public’s attention to social media regulations, and the role of privacy in the digital age. On July 5, 2018, the European Union Parliament rejected proposed revisions to the E.U.’s copyright law that would have radically changed how copyright will be enforced and controlled online. The proposed regulations focused on Articles 11 and 13 of the E.U. Copyright Directive. These provisions were passed by the Committee on Legal Affairs (JURI) in June, but because of the large-scale criticism from technology experts, academics and media organizations, the new regulations were rejected by a parliamentary vote of 318-278 with 31 members abstaining. However, despite this rejection the reworking of E.U. copyright protection online continues with a new vote on copyright reforms to be taken in September 2018.
The rejection of the new laws centered around the controversial Articles 11 and 13 of the E.U. Copyright Directive. These articles were an attempt to limit copyright infringement online and place the responsibility of copyright infringement detection on social media platforms, search engines and internet service providers (ISPs). The most controversial aspect of Article 13 was that it required search engines, ISPs and websites to monitor copyright infringement by utilizing content recognition software or more specifically “effective content recognition technologies” (Copyright Directive, 2016). There was major concern that the software may screen out all potential copyright use, infringing or not, creating an online environment where sharing and reuse becomes banned. The other concern is that if websites are tasked with having this technology it may mean that smaller sites may not have the financing to implement the filter. Sites that rely on sharing content, such as social media, or user created contributions, such as wikis, were also concerned that the filters may prevent their sites from functioning as they always have. Practically this meant that sharing of content, and the creation of new content from well-known images, such as memes that use stills and GIFs, could potentially be screened out from websites altogether (Copyright Directive, 2016).
Compounding this issue of copyright sharing was the “snippet tax” proposed in Article 11. This tax, also referred to as the “link tax,” would require payment and permission for sites to use short pieces of news content owned by other organizations. A classic example would be posting a shortened piece of content or providing a link to news content found on a media organization’s website. This new tax’s requirement that royalties be paid for even small amounts of content would potentially stop the free-flow of news content by third parties online. At the very least Article 11 would have required users to receive permission to post an excerpt of content. However, the issue with Article 11 is compounded by the fact that there is no operationalization of what a link is under the law (Copyright Directive, 2016).
Had these measures passed they would have applied to E.U. organizations operating social media accounts. Even though social media organizations are typically located in the U.S., specifically California, their presence in the international digital sphere means that laws of the E.U. have domestic implications in the United States. Even though U.S. copyright law would likely not allow a ban on transformative use of others’ original content (classic fair use), and would not support a snippet tax (again because of fair use), did not mean E.U. restrictions will not affect domestic communication practice, especially international campaigns. Some web companies were relieved that the proposed changes did not pass with Wikipedia even shutting down its services in Italy on July 3 to protest the proposed changes (for more information about comparative copyright law see Myers’ 2018 presentation at The Bridge Conference here).
It is unclear how copyright reform will proceed now that the proposed changes from JURI have been rejected, but advocates say that the E.U. must deal with the new realities of copyright protection in the digital age. Many of the proponents of the changes the E.U. copyright directive were entertainers and musicians who say their work is being stolen by users on multiple outlets making online outlets rich from their intellectual property. Critics claimed that laws restricting online content will destroy social media and the internet because of the onus placed on search engines and websites. Critics, including Wikipedia co-founder Jimmy Wales, in an open letter to JURI have been vocal in their denouncement of the law. They argued once enacted Article 13 could lead to “automated surveillance and control.” (Article 13 of the EU Copyright Directive Threatens the Internet, 2018). By rejecting the proposals the E.U., Parliament is sending the issue back to JURI to discuss and make new recommendations. Even though these proposed changes are rejected does not mean the issues are dead. There will likely be more debates in the future.
As with online privacy the European Union is at the forefront of intellectual property and social and digital media. PR practitioners, and other communication professionals, should note there are three trends in E.U. intellectual property that will affect practice:
- Vet What You are Posting and Sharing: this is the basis for a lot of the online copyright issues the European Union was dealing with. While critics of the law view it potential censorship, it does protect copyrighted materials when sharing is limited. The rejected laws proposed screening software, which right now may not have sophisticated enough to screen out only infringement. All of this depends on how well the screen works; for instance, does it recognize copyrighted material in public domain? In light of this issue, PR practitioners need to be more cognizant of what they post and re-post. While this attempt to prevent this ultimately failed, PR practitioners should begin to craft online content with an eye toward potential international infringement. This not only prevents any unforeseen infringement claims, but it also prepares practitioners to produce content that would align with any potential new regulations that emerge in the future.
- Social Media Laws are Changing: The General Data Protection Regulation (GDPR) that went into effect in May 2018 and the work on revising the E.U. Copyright Directive show that social media are reaching a level of maturity legally. In the past regulation of digital technology represented an area of law that governments struggled with because of their changing norms. However, it seems that social and digital media have reached a level of predictability in which regulations are now seeking to control. Part of this is the recognition of the power of social media and the voluminous amount of data they hold. Part of this is the awareness of the financial success social media content provides. Social media also represent a type of communication that is globally regulated, and because of its world-wide use the most restrictive regulation becomes the de-facto law everywhere. This means that for PR practitioners the law of social media is not based on where you practice, but where you communicate.
- E.U. Copyright Regulation Will Continue to be Revised: The rejection of the proposed changes to Articles 11 and 13 for the E.U. Copyright Directive have been heralded as a win for the internet. However, there are legitimate issues that underlined this proposed laws, and the characterization of the issue as pro-speech vs. anti-speech is not accurate. Owners of intellectual property have an expectation to be monetarily rewarded for their property. That reward is part of the incentivization for creating this work. Many of them feel that the free-wheeling nature of social media provide a mechanism for platforms to monetarily benefit from their work while simultaneously having no accountability for rampant infringement. If intellectual property is to survive in the digital age there must be some changes made. Whether that is a screen or increased liability for ISPs remains a matter of debate. Right now it seems that the European Union is at the forefront of this debate, and whatever they decide is the eventual solution will likely have a ripple effect for all online communications.
The GDPR laws that went into effect in May 2018 and the rejected Articles 11 and 13 for the Copyright Directive show that in the E.U. there is an approach to online regulation that differs from what is currently law in the U.S. There seems to be a greater emphasis on the individual than on the preservation of the platform. This has caused a new recognition that the transnational aspect of social media means that laws regulating social media have an international impact. What those in the communication field need to expect, particularly those in a globalized practice, is that issues of IP and privacy will continue to evolve.
The trend in E.U. online regulation is the creation of laws that benefit the individual user while placing more responsibility on online platforms. The net result will likely be more rights for the individual, but less fluidity in how users interact and engage with content. As creators of content and the managers of online images, PR practitioners are positioned to be the first to encounter this new digital reality. It is incumbent upon PR practitioners to know how to navigate these new laws while also maintaining the quality of work and engagement with publics. Social media and the internet have always been viewed as providing unique opportunities to public relations. While those opportunities for engagement still exist, new laws show that it is increasingly complex to fully utilize the digital sphere to communicate with publics.
Cayce Myers, Ph.D., LL.M., J.D., APR is the legal research editor for the Institute for Public Relations. He is an assistant professor in the Department of Communication at Virginia Tech where he teaches and researches public relations. Email him at email@example.com or follow him on Twitter @CayceMyers.
Article 13 of the EU Copyright Directive Threatens the Internet. 2018. Retrieved from https://www.eff.org/files/2018/06/12/article13letter.pdf.
Directive of the European Parliament and of the Council on copyright in the Digital Single Market (Copyright Directive). 2016. Retrieved from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52016PC0593.