Last month, the European Union passed controversial new legislation regarding copyright. The European Union Directive on Copyright in the Digital Single Market seeks to make laws regarding copyright and the internet the same across the EU. Having passed through the European Parliament with 348 votes in favor and 274 against on 26th March, the law must now be passed through the Council of Europe, which it is set to do sometime this month. If passed, it will then be up to member states to transpose into national legal frameworks and to enforce.
The directive creates a huge potential for libraries and universities to digitise their archives, including books, films, and audio recordings. If material is still under copyright, but not commercially available, then it will be legal for libraries and universities to digitise. Ben White, a member of the legal working group at the Association of European Research Libraries, has said that “these could include radio broadcasts, out-of-print books and unpublished oral histories”, and Stephen Wyber, manager of policy and advocacy at the International Federation of Library Associations and Institutions, says the directive opens “exciting new possibilities for libraries.”
They further gained increased rights to engage in Text and Data Mining (TDM) by the final draft. TDM is computer aided searches and analysis of large bodies of information, and is used more and more by researchers looking for patterns, or in fields such as Artificial Intelligence. Despite the exclusions, Mr Wyber still says universities “cannot declare victory” until they see how the directive is implemented.
Currently, libraries and universities must seek permission from the copyright holders individually to digitise materials. This prevents mass digitisation of archived material still under copyright, and means many researchers and students must travel to specific libraries or universities to access obscure documents. Under the directive, however, permission to digitise will be available in bulk from bodies that deal with copyright. This is similar to how permission to play copyrighted music in public, in Ireland, currently requires a single license from the Irish Music Rights Organisation, rather than permission from each individual composer or songwriter whose music is to be played.
The most controversial aspect of the directive is Article 13, which will make internet platforms such as YouTube and Facebook legally responsible for any copyrighted material they host. Under current law, platforms are not responsible if they themselves did not post the material to their platform, but must remove it if informed of its copyrighted nature by the copyright holder. Critics, including industry giants such as Twitter and Google, as well as rights lobbyists such as the Electronic Frontiers Foundation and the Mozilla Foundation, say that this will force platforms to screen all content before it is posted, and change the way users use the internet for the worst. As most internet memes are based on edited images from copyrighted material, critics allege that the directive could “ban memes.”
Defenders of the legislation claim that satire will be protected, and so most internet memes will remain legal. The directive does not stipulate a way for platforms to identify copyrighted material before it is posted, but it is presumed by almost all parties that software will be used for this. However, it is unclear how any platforms screening software will be able to identify material as satire. Many content creators already claim that content is being incorrectly flagged as breaching copyright, as algorithms set up to identify songs and visuals from copyrighted property are incapable of identifying fair use, such as criticism or satire.
After Article 13 was first backed by the European Parliament back in September, libraries and universities have successfully lobbied to have themselves excluded. Initial fears where that academic institutions would have to implement costly screening systems to make sure nothing in their digital archive was copyrighted, such as photos or screenshots used in academic papers. Dr. Lidia Borrell-Damian, Director for Research and Innovation at the European University Association, and others have successfully argued that while major online platforms may have the resources to implement the necessary screening processes, academic repositories do not.
In Ireland, critics have said that Article 13 is merely redefining copyright to “benefit – surprise – corporations.” Karlin Lillington wrote in the Irish Times, that Article 13 will enable “large scale, secretive surveillance of individuals and internet sites, embedded invisibly, within the structure of the internet (what could possibly go wrong?).”