New EU Copyright Rules coming up, what’s in it for developers?
No good news.
New copyright rules are about to make life much harder for app developers. Commentaries to the leaked draft of the Copyright Proposal are not enthusiastic to say the least. If you were hoping for balanced open-internet friendly rules, this is not the time.
The European copyright landscape is well-known to be fragmented and outdated as well as totally incapable of embracing the digital revolution. Inconsistent national rules and different implementation strategies have nothing to do with the aim of reaching a Digital Single Market.
Now, a legislative proposal is out. Or, at least, almost out. The Brussels folks had significant time to study it since it was leaked few weeks ago, and the response was lukewarm at best. Few, beyond publishers, are happy with the Commission’s plan to reform copyright. A Member of the European Parliament commented: “If implemented, the draft would effectively end the internet as we know it” (Dutch ALDE MEP Marietje Schaake, D66 Europa).
Then, what’s in it for developers?
A renewed attack to intermediaries liability
The Commission had set it sights on amending the E-commerce Directive through the backdoor by writing copyright rules that would effectively contradict its fundamental principles. According to the text, any service with user generated content will have to filter user uploads for copyright infringement. In order to avoid the liability and a possible heavy fine, your app would need to track and filter all the pictures, images, songs and audio that are uploaded by your users.
Incredibly the Commission thinks this won’t cost too much, even though the technology does not even exist yet and may never come to light. There isn’t currently a single reliable system that can track ALL different types of copyrighted content (musical composition, photos, books, news, film) and there isn’t a single system on earth that can monitor the content of ALL right-holders. Platforms like YouTube or Facebook only apply their tech to right-holders they know and have a deal with – they don’t filter everything.
Takeaway: it won’t be as easy to set up your hosting platform as it was before.
New limits to text and data mining (TDM)
The new proposal limits the ability of app and software developers to aggregate and process available data and texts.
In a few words, the Commission suggests creating a new exception for text-and-data-mining to the sole benefit of academic researchers, thus leaving TDM carried out by private companies in absolute legal uncertainty. For copyright purposes, digital enterprises can only collect and process data and get new smart insights from it when they collect from each and every individual rightsholder the explicit content to do so. This way the proposal kicks big data back to the Stone Age.
The impact of such a decision on the European industry will be significant, considering that the majority of Europe’s 1.6 million startups rely upon data analytics; the latter is vital for all stages of the app development process, from the programming and business model choice to promotion, advertising, maximisation of performance and user retention.
New news publisher rights in digital
A few days ago, a lawsuit from major publisher Sanoma led to the Court of Justice casting doubts as to whether linking remains legal. Essentially, if you publish links for commercial purposes, you are presumed to check that the content you are linking to is lawful. Surely good news for lawyers and copyright experts, as it’s notoriously hard to determine whether a particular webpage infringes copyright (that’s why we have courts).
Instead of solving this problem – huge potential liabilities for businesses built on the web – the Commission decided to make it worse. By giving a new copyright to the very people who brought you this case and who want to control linking: news publishers. Similar attempts at creating new rights were a disaster in Germany and Spain, hurting everyone from consumers to newspapers and startups. Nonetheless, this is now on the table. If your app quotes or uses snippets from a new sources – even a blog – get ready to face infringement claims or pay up.
The digital industry is fairly worried that this is not the right path to take when trying to modernize the copyright framework alongside the digital/internet landscape. Once again, EU decisions taken to solve (what look like) general issues and with large companies’ business models in mind, end up punishing smaller, early stage companies and threatening to slow innovation.
Concerns have been raised not just only around the impact of such new rules to the industry, but also to the freedom of expression and consequently consumer rights and also the impact on innovation as a whole.
Policy Manager, EU