Canadian Copyright Thoughts on Europe's Article 13

Our friends at Odin Law and Media in North Carolina recently published a blog post entitled Article 13: Will It Kill Memes?, which sets out both sides of the argument about Europe’s controversial new Article 13 copyright directive.  The directive has been approved by European Parliament and will now be implemented by local authorities throughout the European Union.  It’s a great read, particularly for those in the video games and esports arena, but we thought we’d provide some thoughts on what Article 13 means in the context of the Internet from a Canadian perspective, particularly if you plan on offering a service that allows people to share content.

 

What is it?  Simply put, Article 13 puts responsibility on content sharing service providers to ensure that rights holders are protected on their services.  While that doesn’t sound controversial, the devil is in the details: an original draft of the law would have required all providers to use “proportionate content recognition technologies”, or upload filters, that would be expensive to implement; the new law exempts providers that have annual revenue below 10 million, AND have been available for less than three years, AND have less than five million monthly visitors.  That will catch a lot of services – the long and the short of it is, if you offer a service available to Europeans that allows users to share content, you are likely responsible for working with rightsholders to make sure their work is used appropriately (which likely means filtering content, making sure you collect royalties, and that sort of thing… see YouTube’s expensive and extensively-developed ContentID system for an example).

 

Why is it controversial?  It is important to remember that the Web 2.0 boom and everything that’s flowed from that originated in the United States, where there are two laws that essentially exempt service providers from copyright liability from things their users do: first, the Communications Decency Act (CDA) has what’s known as the “liability shield”, providing that a service provider is not responsible for what its users post on the internet; second, the Digital Millennium Copyright Act (DMCA) has the famous “takedown shield”, which gives service providers immunity from copyright lawsuits if they take down potentially infringing user-uploaded content that potentially infringes works.  Between those two things, the ethos of the Internet economy has allowed tech companies to flourish without being buried in lawsuits about copyright or libel/defamation.  Article 13 obviously threatens that.

 

What is Canada’s take?  Canada doesn’t have anything like the CDA, so as a starting point we should remember that no law in Canada prevents a Canadian tech company from being sued for the actions of its users (for example, for defamatory content that they post and the service “publishes”).  Our relatively recent copyright amendments implemented a unique “notice and notice” system, which isn’t like the DMCA “takedown shield” for copyright at all.  While our law doesn’t mandate immediate take down, the liability protections under our Copyright Act are quite limited: internet service providers don’t infringe copyright by merely providing the technical means of telecommunications; internet storage providers don’t infringe copyright merely by storing another person’s work, unless they knew about a court decision that it was infringing; and internet search engines don’t compensably infringe copyright by providing search tools, but can be required to take the content down.

 

What does it mean for Canadian Companies?  Europe’s Article 13 goes much further and actively provides a positive mandate to Internet service providers to police their content.  But the practical reality is that Canadian service providers are already vulnerable in the ways that Article 13 speaks to: most services don’t merely act as passive conduits that afford them our liability shields, with recommendations, notifications, “you might like” panels, email blasts, rating tools and other mechanisms to actively drive user engagement.  As a result, Article 13 creates additional considerations particularly when dealing with services available in Europe, but isn’t an affront to our ethos in the way that it would be, say, to a Silicon Valley company protected by the CDA and DMCA.  Time will tell how difficult it is to comply with, particularly as local authorities throughout Europe implement the directive.