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Copyright Laws for the Digital Era

Posted on Sunday, March 31, 2019 at 1:18 AM

A reader's question: Will evolving copyright laws help or hurt us?

By William Dunkerley

Q. A publisher friend told me that the European Union just took some bold steps on copyright. He didn't really have the whole story. But he thinks things could go either way for the magazine publishers. Who knows if what the EU's doing could cross the pond and influence our lawmakers? I do know from time to time some of our articles get pilfered by bloggers and some questionable foreign sites. It's really annoying, but I can't say it's actually hurt us. On the other side of the coin is our use of content we find online. We always respect the copyrights of our sources. But if new laws start giving us problems with fair use, it would be a big pain. What do you know about this EU action?

A. First of all, rest assured that there's no need to panic. It's true that the EU parliament has passed a possibly consequential update to its concept of copyright regulation. The matter was very contentious, and strong opinions ran deep on both sides of the issue. The next step, as I understand it, is for the individual nations to incorporate the EU directive into their respective national laws. That may give opponents an opportunity to maneuver to their advantage.

Whether any of this could migrate to the US is open to question. The US constitution may come into play.

The European move has been reported in international media variously:

"EU Votes to Rewrite Its Copyright Laws, Delivering a Blow to Tech Giants" --NPR

"EU Copyright Reforms Pit Creative Industry Against Internet Activists, Consumers" --Reuters

"EU Holds Online Platforms Liable for Users' Copyright Infringement" --Fortune

"Europe's New Copyright Law Is as Clear as Mud" --CNN

"EU's Copyright Directive Passes Despite Widespread Protests" --Forbes

"Ten European Lawmakers Say They Voted Against Pivotal Copyright Amendment by Accident" --The Verge

Perhaps CNN has it right. Is the situation as clear as mud?

The most contentious part of the EU's initiative is called Article 13.

According to NewScientist.com, "Article 13 could have a huge impact on how material is shared online. Put simply, it makes websites responsible for ensuring that content uploaded to their platforms doesn't breach copyright."

That concept is already being observed by many magazine publishers. Most good editors are already checking facts and sources. But if your online presence includes content that readers can post themselves, it would be a different story. Moderated reader comment sections would have to become universal. Postings to a publication's Facebook page could come into play.

In an article that appeared just before EU's final passage, TrustedReviews.com claimed the "EU Will Kill Small Publishers."

It's clearly a problem for the big guys too. Reuters reported, "A requirement for Google's YouTube, Facebook's Instagram and other sharing platforms to install filters to catch copyright violations known as Article 13, but now renumbered to Article 17, has triggered protests, with an online petition www.savetheinternet.info garnering more than 5 million signatures so far."

Taking down infringing content based on complaints would not be good enough. The filtering would have to be done before the fact. And that, in the minds of some, would lead to invoking filters. They would make automatic decisions based on information gathered by casting a wide net to track online behavior.

That would seem to be in conflict with Europe's hyper concern for internet privacy. They have been out in front of the US in that regard. It's surprising that the EU will condone greater covert data sweeps. The activity brings to mind the song "Every Breath You Take" by the 1980s rock group The Police. The lyrics clearly suggest that someone will be watching your every move.

How much of the new European copyright concepts could pop up some day in counterpart US copyright law is questionable. The First Amendment could stand in the way if such counterpart legislation could be considered as "abridging the freedom of speech or of the press."

The Supreme Court ruled a hundred years ago that the First Amendment does not protect dangerous speech. "Falsely shouting 'fire' in a crowded theater" is often used as an example. But that notion doesn't suggest that theaters should use covertly gathered psychographic and behavioral data to screen every theatergoer in order to thwart someone who has shouting "fire" on his or her mind.

It's still too early to know how the European copyright initiative will shake down. We'll follow the issue and report back as things become clearer.

William Dunkerley is principal of William Dunkerley Publishing Consultants, www.publishinghelp.com.

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