In recent weeks, two key EU institutions have shown their support for the views and claims of big copyright holders, and further restricted freedom of expression online. Two decisions handed down by the European Court of Justice, as well as the European Commission’s proposal to review the copyright legal framework, may be obscure to the general public, but they may change the Internet as we know it.
Have you made sure that an old link posted on your blog does not link to content protected under copyright? Can you confirm that WiFi users at your shop are not illegally uploading copyrighted material? Under the new European Union copyright regime, if you answered no to either of these questions you might have cause for concern.
The European Union is restricting freedom of expression online through the application of more stringent copyright rules that could lead to the impoverishment of online flows of information through an increased risk of liability for hyperlinking, and the disappearance of free WiFi access points and of curation services like Google News.
Whilst the protection of copyright is a legitimate objective that may justify certain restrictions of freedom of expression, current legal and policy developments at the EU level are taking it a step too far, and risk having a disproportionate impact on the free flow of information and ideas online.
The new rules can be found in the draft Copyright Directive released by the European Commission and recent decisions by the European Court of Justice (CJEU) in two seemingly innocuous cases: the first, a case of a blog which hyperlinked to a site hosting material which infringed copyright; the second, a case concerning a small-business owner whose free WiFi had been used to illegally download and distribute copyright infringing music files.
What will this new regime mean for Internet users and intermediaries?
The sensual death of hyperlinks
GeenStijl is a Dutch shock blog which describes itself as a publisher of “light hearted items and wacky nonsense” – its very business model relies on scandal and controversy. It published an article which contained hyperlinks to an Australian website which had posted nude photos of Dutch celebrity Britt Dekker, who, in 2011, had posed for Playboy. The pictures had been posted on the Australian website without the consent of the copyright holder, Playboy, and the group had later asked GeenStijl to remove the hyperlinks to the pictures from the blog. When eventually Playboy managed to have the pictures removed from the Australian hosting website, GeenStijl published new hyperlinks to new webpages containing the same pictures.
Aren’t hyperlinks just signposts to existing online material – like a finger pointing you in a certain direction? Well, the CJEU found that someone who posts a hyperlink to content protected by copyright may be liable if the person knew, or ought to have known, that the hyperlink lead to illegally published works (that is, works published without the authorisation of the rights-holder).
The decision confirmed the approach in the BestWater and Svensson cases, in which the ECJ implicitly recognised that posting a hyperlink may constitute an act of “communication to the public” (which triggers liability for infringement of copyright, as the rights-holder has to grant prior authorisation for the communication of protected works to the public).
This finding is extremely problematic. Links are a basic feature of everyday online interaction, they enable information sharing and act as a form of reference to archived online material. By virtue of being part and parcel of the right to receive and impart information, they are protected under Article 10 and any restriction should comply with the requirements of legality, necessity and proportionality. Conceiving of hyperlinks as “communication to the public”, protected under copyright legislation, would mean that hyperlinking is a restricted act which may require permission from the copyright holder. The vast majority of links would need to be expressly licensed, and all users posting hyperlinks would have to assess whether the material they link to infringes copyright.
Even more alarming is that according to the Court, knowledge of the illegal presence of copyrighted content will be presumed in cases where a hyperlink is posted “for profit”. But what constitutes a “for profit” hyperlink? As the criteria are not defined, this leaves national courts open to call anything from a big news outlet to a personal blog supported by advertising a “for profit” site. Moreover, presuming knowledge on the basis of a website’s commerciality puts a heavy burden on editors (who have access to vastly different resources) to investigate and retroactively monitor what type of content their website links to, often in hundreds or thousands of different hyperlinks.
The precedent set by the ruling in this case amounts to a disproportionate restriction of freedom of expression and could have a catastrophic chilling effect on the online circulation of information and ideas, as websites, individuals, and bloggers, might simply stop making use of hyperlinks to avoid attracting liability.
Unfortunately, this was not the only recent decision of the CJEU to cause concern for the future of the Internet.
No ID, no Wi-Fi
McFadden, a small business owner, provided a free WiFi connection in his shop in order to draw the attention of people nearby to his business. He was sued by Sony because someone downloaded a copyright-protected music file which was then shared with an unlimited number of users through a file-sharing site, via McFadden’s WiFi. McFadden’s WiFi connection was not password-protected, so he was not aware of who was connected to it, or of the traffic passing through the system. The German Regional Court who originally heard the case accepted that McFadden was not the party who had infringed Sony’s copyright, so why did he find himself at the CJEU?
The CJEU found that McFadden constituted an information service provider (ISP) as he provided an Internet access service to customers. Under the E-Commerce Directive, ISPs are generally exempted from liability for unlawful acts committed by third parties, as otherwise they would become censorship agents in charge of monitoring colossal amounts of data.
While the CJEU recognised that McFadden was exempt from liability, it also held that under EU law an injunction can be imposed at the request of the copyright holder to force the ISP to secure their connection through password-protection. This measure was said to cast the right balance between intellectual property rights, freedom to conduct a business and freedom of information. This is questionable, however, as implementing a password-protection system may not achieve the apparent aim of discouraging copyright violations, while it will affect freedom of information and expression. As the Advocate General said “Public WiFi networks used by large number of people are not particularly susceptible to the risk of infringement of copyright protected works and objects… WiFi access points indisputably offer great potential for innovation”.
The CJEU added that to ensure that password-protection acts as an effective deterrent to copyright infringement, it could be “necessary to require users to reveal their identity to be prevented from acting anonymously before obtaining the required password”. In a European Union increasingly obsessed with surveillance, the possibility of imposing ID checks on WiFi users is a troubling precedent. Whilst the aim may be to deter copyright violators, it will inhibit anyone making use of these services, interfering disproportionately with the right to freedom of expression and information.
ISPs may not be willing to supply open, free WiFi networks, services that are fundamental to certain parts of the population, including those who need to use the Internet anonymously, or who cannot afford their own connections. Freedom of expression includes the right to anonymity ; the CJEU decision risks undermining this fundamental aspect of the full exercise and enjoyment of the right to free expression.
The price of ‘snippets’
The new Copyright Directive proposal of the European Commission has already provoked criticism and protest from civil society and grassroots groups. What’s buried in this 30-page document that has caused such a backlash? Two key concerns can be identified within the proposal which, in line with the recent CJEU cases, strike a problematic balance between the need to protect copyright online and fundamental rights enshrined in international law.
Firstly, a key clause relates to the creation of new “ancillary rights” under which news aggregators (like Google News) and search engines will have to obtain licenses from publishers before including ‘snippets’ (which summarise the articles) in their results. This will allow publishers to demand fees from others for any “use of the work” for 20 years. This new right is intended to stop news aggregators from copying a portion of published articles, with the aim of preventing advertising revenues from flowing away from the original publishing news site. It could however have negative repercussions. Businesses models that operate by providing a short overview of articles through ‘snippets’ from press websites would be forced to either change their structure or stop operating in the European Union to avoid the payments.
Secondly, the proposed Directive obligates services that host user-generated content to implement “effective content recognition technologies” to protect copyrighted works. Services that would fall under this obligation include platforms like Facebook, YouTube and Myspace, as well as smaller ones where users can share stories and content. What this means in practice is that, while operators will not expressly be under a duty to monitor the content on their platform, they will be obliged to implement programmes from dominant platforms such as YouTube’s Content ID. These programmes have already been criticised for interfering with freedom of expression, leading to loss of monetisation and creating a structure where copyright holders can act as judge, jury and executioner.
From unfair takedowns to complex appeal procedures, imposing automated copyright monitoring will discourage users from uploading content and will deter new online platform operators from emerging. In addition, these systems are extremely expensive to develop (it cost Google over $60 million to develop its Content ID programme), which will deter groups trying to set up alternative user-generated content platforms, thereby limiting the diversity of online material and hampering innovation.
How does this square with our fundamental rights?
Corporate pressure and lobbying efforts have lead the European Union to prioritise tackling copyright infringement. But where do our fundamental rights fit in?
The hyperlink on your personal blog, which hosts a few ads, might make you liable for copyright infringement. Your documents may be checked and recorded when you access the WiFi in your local coffee shop. The ability to quickly compare different news articles, and decide where to get your information from, could well disappear.
While intellectual property should be protected, it is clear that the recent direction of the EU will deeply impact our capacity to gather information, express ourselves and even access the Internet. We need to move quickly to save the most powerful tool of our century.